<subtitle num="01" heading="General Provisions"> <chapter num="01" heading="Authority, Policies, and Purposes"> <regulation prefix="Regulation" num=".01" heading="Promulgating Authorities."> <paragraph num="A."> <text>The promulgating authorities for the State procurement regulations are: the Board of Public Works (the Governor, Comptroller, and Treasurer); the Comptroller of the Treasury; the State Treasurer; and the Secretaries of General Services and Transportation.</text> </paragraph> <paragraph num="B."> <text>Regulations concerning the Maryland State Board of Contract Appeals shall be promulgated by the Appeals Board.</text> </paragraph> <paragraph num="C."> <text>Regulations concerning prevailing wage shall be promulgated by the Commissioner of Labor and Industry, Maryland Department of Labor.</text> </paragraph> <paragraph num="D."> <text>Regulations concerning veteran-owned small business enterprise participation shall be promulgated by the Governor's Office of Small, Minority, and Women Business Affairs.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Regulations Compliance and Review."> <text>The promulgating authorities shall determine compliance with the regulations. The Comptroller of the Treasury shall audit and review State agency payment requests to ensure compliance with the regulations.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Policies and Purposes."> <text>The principal policies and purposes of these regulations are to:</text> <paragraph num="A."> <text>Provide for increased public confidence in the procedures followed in public procurement;</text> </paragraph> <paragraph num="B."> <text>Ensure the fair and equitable treatment of all persons who deal with the procurement system of this State;</text> </paragraph> <paragraph num="C."> <text>Simplify, clarify, and modernize the regulations governing procurement by this State;</text> </paragraph> <paragraph num="D."> <text>Permit the continued development of procurement regulations, policies, and practices;</text> </paragraph> <paragraph num="E."> <text>Provide increased economy in State procurement activities and to maximize to the fullest extent the purchasing power of the State;</text> </paragraph> <paragraph num="F."> <text>Provide safeguards for the maintenance of a procurement system of quality and integrity;</text> </paragraph> <paragraph num="G."> <text>Foster effective broad-based competition through support of the free enterprise system; and</text> </paragraph> <paragraph num="H."> <text>Promote development of uniform procurement procedures to the extent possible.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Application of Maryland Law."> <text>The principles of the law of Maryland shall be used to interpret the provisions of this title.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§11-201, 12-101, 12-108, 14-604, 15-210, and 17-204, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective October 18, 1999 (26:21 Md. R. 1631); May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01D adopted effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> <chapter num="02" heading="Terminology"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this title, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Alternate bid” means a dollar amount to be added to or subtracted from the bid for a variation in the item being bid upon. Alternate bids may be either “add alternate bids” or “deduct alternate bids”.</text> </paragraph> <paragraph num="(2)"> <text>“Annual cost” means a maximum dollar expenditure for a 12-month period including the costs of amendments, change orders, and renewals.</text> </paragraph> <paragraph num="(3)"> <text>“Anticipated contract cost” means the dollar amount indicated by the best information readily available for the completed project cost without partitioning or segmenting the project.</text> </paragraph> <paragraph num="(4)"> <text>“Appeals Board” means the Maryland State Board of Contract Appeals.</text> </paragraph> <paragraph num="(5)"> <text>“Appropriate department” means the department with control agency responsibility under this title for the procurement.</text> </paragraph> <paragraph num="(6)"> <text>Architectural Services.</text> <paragraph num="(a)"> <text>“Architectural services” means professional or creative work that is performed in connection with the design and supervision of construction or landscaping, and that requires architectural education, training, and experience.</text> </paragraph> <paragraph num="(b)"> <text>“Architectural services” includes consultation, research, investigation, evaluation, planning, architectural design and preparation of related documents, and coordination of services furnished by structural, civil, mechanical, and electrical engineers and other consultants.</text> </paragraph> <paragraph num="(c)"> <text>“Architectural services” does not include construction inspection services or services provided in connection with an energy performance contract for structural, mechanical, plumbing, or electrical engineering.</text> </paragraph> </paragraph> <paragraph num="(7)"> <text>Repealed.</text> </paragraph> <paragraph num="(8)"> <text>“Award” means the transmission by the procurement agency, after all required approvals have been obtained, of:</text> <paragraph num="(a)"> <text>The executed contract; or</text> </paragraph> <paragraph num="(b)"> <text>Written notice of award to the selected vendor.</text> </paragraph> </paragraph> <paragraph num="(9)"> <text>“Bid” means a statement of price, terms of sale, and description of the supplies, services, construction, or construction-related services offered by a bidder in response to an invitation for bids under procurement by competitive sealed bidding or comparable small procurement procedures.</text> </paragraph> <paragraph num="(10)"> <text>“Bid board” means a bulletin board displayed in an area to which the public has access and on which are posted solicitations or announcements of availability of solicitations, or both.</text> </paragraph> <paragraph num="(11)"> <text>“Bid sample” means a sample furnished by a bidder to show the characteristics of the item offered in the bid which will be delivered in accordance with the terms and conditions of the contract.</text> </paragraph> <paragraph num="(12)"> <text>“Bidder's application” means the appropriate form designated by the procurement agency for use by vendors wishing to do business with the State.</text> </paragraph> <paragraph num="(13)"> <text>“Board” means the Board of Public Works.</text> </paragraph> <paragraph num="(13-1)"> <text>“Broker” means a person that conducts business (other than real estate, investment, or insurance sales) on a pass-through basis and with respect to:</text> <paragraph num="(a)"> <text>Supplies:</text> <paragraph num="(i)"> <text>Does not own, operate, or maintain a place of business in which supplies of the general character required under the contract are kept in stock in the regular course of business,</text> </paragraph> <paragraph num="(ii)"> <text>Does not regularly assume physical custody or possession of supplies of comparable character to those offered to the State, or</text> </paragraph> <paragraph num="(iii)"> <text>Exclusively acts as a middleman in the provision of supplies offered to the State; or</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Services, does not regularly maintain the capability, capacity, training, experience, and applicable regulatory licensing to directly perform the principal tasks of a contract with the State, and acquires the services elsewhere, for the benefit of the State.</text> </paragraph> </paragraph> <paragraph num="(14)"> <text>“Business” means any corporation, partnership, individual, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.</text> </paragraph> <paragraph num="(15)"> <text>Repealed.</text> </paragraph> <paragraph num="(16)"> <text>“Change order” means a written order signed by the responsible procurement officer, directing a contractor to make changes which the changes clause of a contract authorizes the procurement officer to order with or without the consent of the contractor.</text> </paragraph> <paragraph num="(16-1)"> <text>“Chief Procurement Officer (CPO)” means an official of the Department of General Services, appointed by the Governor with the advice and consent of the Senate, who is the head of all procurement activity for the Executive Branch of State government within the jurisdiction of the Department of General Services.</text> </paragraph> <paragraph num="(17)"> <text>“Code” means the Annotated Code of Maryland.</text> </paragraph> <paragraph num="(18)"> <text>“Commissioner” means the Commissioner of Labor and Industry of the Maryland Department of Labor.</text> </paragraph> <paragraph num="(19)"> <text>Commodity.</text> <paragraph num="(a)"> <text>“Commodity” means an item of purchase which may include office goods and materials, food, printing, copying, energy, building materials, and other items needed to support normal operations.</text> </paragraph> <paragraph num="(b)"> <text>“Commodity” differs from “supply” in that commodity does not include leases of real property.</text> </paragraph> </paragraph> <paragraph num="(20)"> <text>“Competitive sealed bidding” means the process set forth in COMAR 21.05.02.</text> </paragraph> <paragraph num="(21)"> <text>“Competitive sealed proposals” means the process set forth in COMAR 21.05.03.</text> </paragraph> <paragraph num="(22)"> <text>“Comptroller” means the Comptroller of the Treasury of the State.</text> </paragraph> <paragraph num="(23)"> <text>Construction.</text> <paragraph num="(a)"> <text>“Construction” means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.</text> </paragraph> <paragraph num="(b)"> <text>“Construction” includes any major work necessary to repair, prevent damage to, or sustain existing components of an improvement to real property.</text> </paragraph> <paragraph num="(c)"> <text>“Construction” does not include the maintenance or routine operation of an existing improvement to real property, or activities related to an energy performance contract.</text> </paragraph> </paragraph> <paragraph num="(24)"> <text>Construction-Related Services.</text> <paragraph num="(a)"> <text>“Construction-related services” means a service that is necessary for construction and maintenance of a public improvement project.</text> </paragraph> <paragraph num="(b)"> <text>“Construction-related services” includes feasibility studies, surveying, construction management, construction inspection, programming, energy audits, interior design, and telecommunications systems.</text> </paragraph> <paragraph num="(c)"> <text>“Construction-related services” does not include:</text> <paragraph num="(i)"> <text>Such services as housekeeping, security, janitorial, and the like;</text> </paragraph> <paragraph num="(ii)"> <text>Services provided in connection with an energy performance contract.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(25)"> <text>Contract.</text> <paragraph num="(a)"> <text>“Contract” means an agreement:</text> <paragraph num="(i)"> <text>In writing except as otherwise authorized; and</text> </paragraph> <paragraph num="(ii)"> <text>Entered into by a procurement agency for the lease as lessee of real or personal property or the acquisition of supplies, services, construction, construction-related services, architectural services, or engineering services.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Contract” does not include:</text> <paragraph num="(i)"> <text>Collective bargaining agreements with employee organizations or agreements creating employer-employee relationships, as defined in State Personnel and Pensions Article, §13-101, Annotated Code of Maryland; or</text> </paragraph> <paragraph num="(ii)"> <text>Medicaid, Medicare, Judicare, or similar reimbursement contracts for which user eligibility and cost are set by law or regulation.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(26)"> <text>“Contract modification” means any written alteration in the specifications, delivery point, date of delivery, contract period, price, quantity, or other provision of any existing contract, whether accomplished in accordance with a contract provision, or by mutual action of the parties to the contract. It includes change orders, extra work orders, supplemental agreements, contract amendments, or reinstatements.</text> </paragraph> <paragraph num="(27)"> <text>“Contractor” means any person having a contract with a procurement agency. Contractor does not include an employee with an employment contract, or an employee organization with a collective bargaining agreement.</text> </paragraph> <paragraph num="(28)"> <text>“Control” means the power to supervise, regulate, or command and includes the authority to approve or disapprove an action.</text> </paragraph> <paragraph num="(29)"> <text>“Control authority or agency” means a department having the power to supervise, regulate, command, approve or disapprove actions of a procurement agency or using agency.</text> </paragraph> <paragraph num="(30)"> <text>“Cost-reimbursement contract” means a contract under which the State reimburses the contractor for those contract costs, within a stated ceiling, and a fee, if any, which are recognized as allowable and allocable under the cost and price principle regulations.</text> </paragraph> <paragraph num="(31)"> <text>“Cultural services” means services that are provided directly to third-party clients or to the public under a contract the primary purpose of which is the direct provision of cultural services.</text> </paragraph> <paragraph num="(32)"> <text>“Day” means calendar day unless otherwise designated.</text> </paragraph> <paragraph num="(33)"> <text>“Department” means the State Treasurer, the Departments of General Services and Transportation, and the Maryland Port Commission.</text> </paragraph> <paragraph num="(34)"> <text>“Determination” means a written procurement decision made by a public official or employee which is based upon written findings.</text> </paragraph> <paragraph num="(35)"> <text>“Educational services” means services procured by the Maryland Department of Health, the Department of Human Services, the Maryland Department of Labor, the Department of Juvenile Services, the Department of Disabilities, or the Department of Aging in order to provide training directly to third-party clients under a contract the primary purpose of which is the direct provision of educational services.</text> </paragraph> <paragraph num="(35-1)"> <text>“eMaryland Martketplace” or “eMaryland Marketplace Advantage” or “eMMA” means the Internet-based procurement system managed by the Department of General Services.</text> </paragraph> <paragraph num="(36)"> <text>“Emergency” means an occurrence or condition that creates an immediate and serious need for services, materials, or supplies that cannot be met through normal procurement methods and are required to avoid or mitigate serious damage to public health, safety, or welfare.</text> </paragraph> <paragraph num="(36-1)"> <text>“Energy performance contract” means an agreement for the provision of energy service, including electricity, heating, ventilation, cooling, steam, or hot water, in which a person agrees to design, install, finance through direct vendor financing and not by way of a municipal lease, maintain, or manage energy systems or equipment to improve the energy efficiency of a building or facility in exchange for a portion of the energy savings.</text> </paragraph> <paragraph num="(37)"> <text>Engineering Services.</text> <paragraph num="(a)"> <text>“Engineering services” means professional or creative work that:</text> <paragraph num="(i)"> <text>Is performed in connection with utilities, structures, buildings, machines, equipment, and processes, including structural, mechanical, plumbing, electrical, geotechnical, and environmental engineering; and</text> </paragraph> <paragraph num="(ii)"> <text>Requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Engineering services” includes consultation, investigation, evaluation, planning, design, and inspection of construction for the purpose of interpreting and assuring compliance with specifications and design within the scope of inspection services.</text> </paragraph> <paragraph num="(c)"> <text>“Engineering services” does not include:</text> <paragraph num="(i)"> <text>The inspection of construction not requiring engineering training;</text> </paragraph> <paragraph num="(ii)"> <text>Services provided in connection with an energy performance contract.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(38)"> <text>Equipment.</text> <paragraph num="(a)"> <text>“Equipment” means personal property of a durable nature that retains its identity throughout its useful life.</text> </paragraph> <paragraph num="(b)"> <text>“Equipment” includes aircraft and vessels.</text> </paragraph> <paragraph num="(c)"> <text>“Equipment” does not include commodities, motor vehicles, or information technology equipment (hardware and software).</text> </paragraph> </paragraph> <paragraph num="(39)"> <text>“Equivalent item” means an item of equipment, material, or supply, the quality, design, or performance characteristics of which are functionally equal or superior to an item specified in a solicitation.</text> </paragraph> <paragraph num="(40)"> <text>“Established catalog price” means the price included in a current catalog, price list, schedule, or other form that:</text> <paragraph num="(a)"> <text>Is regularly maintained by the manufacturer or supplier of an item;</text> </paragraph> <paragraph num="(b)"> <text>Is published or available for inspection by customers; and</text> </paragraph> <paragraph num="(c)"> <text>States:</text> <paragraph num="(i)"> <text>Discounted prices at which sales are currently or were last made to local, state, or federal agencies; or</text> </paragraph> <paragraph num="(ii)"> <text>Prices at which sales are currently or were last made to the general buying public.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(41)"> <text>“Evaluated bid price” means the dollar amount of a bid after bid price adjustments are made under objectively measurable criteria.</text> </paragraph> <paragraph num="(42)"> <text>“Expedited procurement” means the process set forth in COMAR 21.05.06.</text> </paragraph> <paragraph num="(43)"> <text>“Extension” as applied to contracts for the performance of architect/engineer services, means a change in the scope of the services to be performed by the architect/engineer by including in the contract a requirement for the performance of phases of services not previously included.</text> </paragraph> <paragraph num="(44)"> <text>“Fund availability” means monies that are currently credited to the procurement agency and are contained within the proper object of expenditure.</text> </paragraph> <paragraph num="(45)"> <text>Repealed.</text> </paragraph> <paragraph num="(46)"> <text>“Grant” means the bestowing of a power, money, privilege, property, or other item of value that may be conditional, although without other consideration, by the State upon another party. Grants are identified specifically by formula or specific allocation in law or in the annual operating budget act, bond authorizations, or other acts of the legislature. A grant as defined here is not a contract for purposes of this title.</text> </paragraph> <paragraph num="(47)"> <text>“Human services” means services procured by the the Maryland Department of Health, the Department of Human Services, the Maryland Department of Labor, the Department of Juvenile Services, the Department of Disabilities, or the Department of Aging in order to provide support, care, or shelter directly to third-party clients under a contract the primary purpose of which is the direct provision of these services.</text> </paragraph> <paragraph num="(47-1)"> <text>“Information technology” means all electronic information processing, including:</text> <paragraph num="(a)"> <text>Maintenance;</text> </paragraph> <paragraph num="(b)"> <text>Telecommunications; [and]</text> </paragraph> <paragraph num="(c)"> <text>Hardware;</text> </paragraph> <paragraph num="(d)"> <text>Software; and</text> </paragraph> <paragraph num="(e)"> <text>Associated services.</text> </paragraph> </paragraph> <paragraph num="(48)"> <text>“Invitation for bids” means any documents, whether attached or incorporated by reference, used for soliciting bids under procurement by competitive sealed bidding and small procurement procedures including requests for quotations.</text> </paragraph> <paragraph num="(49)"> <text>“Invitation for quotation” means invitation for bids.</text> </paragraph> <paragraph num="(50)"> <text>“Invoice” means a contractor's written request for payment for supplies, commodities, services, maintenance, construction, construction-related services, architectural services, or engineering services performed or provided.</text> </paragraph> <paragraph num="(51)"> <text>“Lease” means a contract under which the State uses real or personal property to which the State does not have title. “Lease” does not include lease-purchase or similar financing transactions.</text> </paragraph> <paragraph num="(52)"> <text>“Lease of real property” means the State's acquisition or modification of a leasehold interest, either permanent or temporary, in land, structures, or facilities, including a sublease.</text> </paragraph> <paragraph num="(52-1)"> <text>“Local Jurisdiction” means a county or a government entity which:</text> <paragraph num="(a)"> <text>Is a unit of government responsible for an area situated solely within a single county;</text> </paragraph> <paragraph num="(b)"> <text>Has a governing body elected independently of the county government;</text> </paragraph> <paragraph num="(c)"> <text>Is financed with revenues secured in whole or in part from special taxes or assessments levied on real property situated within the area;</text> </paragraph> <paragraph num="(d)"> <text>Performs municipal services for the residents of the area; and</text> </paragraph> <paragraph num="(e)"> <text>Was not created for limited or special purposes.</text> </paragraph> </paragraph> <paragraph num="(53)"> <text>“Maintenance” means any work necessary for the continued operation or upkeep of a facility, structure, building, grounds, or building system, including built-in equipment or an in-ground system, that is not included within the definition of construction.</text> </paragraph> <paragraph num="(54)"> <text>Minority Business Enterprise (MBE).</text> <paragraph num="(a)"> <text>“Minority business enterprise (MBE)” means any legal entity, other than a joint venture, organized to engage in commercial transactions which is:</text> <paragraph num="(i)"> <text>At least 51 percent owned and controlled by one or more individuals who are socially and economically disadvantaged; and</text> </paragraph> <paragraph num="(ii)"> <text>Managed by, and the daily business operations of which are controlled by, one or more of the socially and economically disadvantaged individuals who own it.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Minority business enterprise (MBE)” includes a not-for-profit entity organized to promote the interests of physically or mentally disabled individuals.</text> </paragraph> </paragraph> <paragraph num="(55)"> <text>Repealed.</text> </paragraph> <paragraph num="(56)"> <text>“Most advantageous” means that proposal received from a responsible offeror that is determined to be most beneficial to the State considering price and evaluation criteria set forth in the request for proposals.</text> </paragraph> <paragraph num="(57)"> <text>“Most favorable” means that bid received from a responsible bidder that is the lowest bid price or lowest evaluated bid price or the bid or evaluated bid that yields the greatest revenue for the State under a revenue-producing procurement contract subject to this title.</text> </paragraph> <paragraph num="(58)"> <text>“Multiple award” means the award of contracts to more than one vendor for the same goods or labor.</text> </paragraph> <paragraph num="(59)"> <text>“Multiyear contract” means a contract that requires appropriations for more than 1 fiscal year.</text> </paragraph> <paragraph num="(60)"> <text>“Objectively measurable criteria” means standards, not matters of opinion or subjective judgment, that enable the State to compare the economy, effectiveness, or value of the subject of the solicitation and includes reliability, operational costs, maintainability, useful life, and residual value.</text> </paragraph> <paragraph num="(61)"> <text>“Option” means the unilateral right of the State under a contract to extend the contract for an additional period of time, or to purchase delimited additional goods or labor, or to purchase materials or facilities that have been leased.</text> </paragraph> <paragraph num="(62)"> <text>“Oral bids” means bids which are proposed by a means other than by writing.</text> </paragraph> <paragraph num="(63)"> <text>“Partial or progressive awards” means a split award of a term contract to more than one vendor.</text> </paragraph> <paragraph num="(64)"> <text>“Person” means any individual, or a corporation, partnership, sole proprietorship, joint stock company, joint venture, unincorporated association, union, committee, club, or other organization or legal entity.</text> </paragraph> <paragraph num="(64-1)"> <text>“Primary procurement unit” means:</text> <paragraph num="(a)"> <text>The State Treasurer;</text> </paragraph> <paragraph num="(b)"> <text>The Department of General Services;</text> </paragraph> <paragraph num="(c)"> <text>The Department of Transportation;</text> </paragraph> <paragraph num="(d)"> <text>The Maryland Port Commission;</text> </paragraph> <paragraph num="(e)"> <text>Morgan State University;</text> </paragraph> <paragraph num="(f)"> <text>St. Mary’s College of Maryland; and</text> </paragraph> <paragraph num="(g)"> <text>The University System of Maryland.</text> </paragraph> </paragraph> <paragraph num="(65)"> <text>“Procurement” includes all functions that pertain to the process of leasing real property as a lessee, and the process of buying, leasing as lessee, purchasing, or otherwise obtaining any supplies, services, construction, construction-related services, architectural services, engineering services, or services provided under an energy performance contract, including description of requirements, selection, and solicitation of sources, preparation and award of contract, and all phases of contract administration.</text> </paragraph> <paragraph num="(66)"> <text>“Procurement agency” means any principal department or independent unit of the Executive Branch of the State, not otherwise exempted from application of this title, that is authorized by law or regulations to procure.</text> </paragraph> <paragraph num="(66-1)"> <text>Procurement Contract.</text> <paragraph num="(a)"> <text>“Procurement contract” means an agreement in any form entered into by a unit for procurement.</text> </paragraph> <paragraph num="(b)"> <text>“Procurement contract” does not include:</text> <paragraph num="(i)"> <text>A collective bargaining agreement with an employee organization;</text> </paragraph> <paragraph num="(ii)"> <text>An agreement with a contractual employee as defined in State Personnel and Pensions Article, §1-101(e), Annotated Code of Maryland; or</text> </paragraph> <paragraph num="(iii)"> <text>A Medicaid, Judicare, or similar reimbursement contract for which law sets user or recipient eligibility and price payable by the State.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(67)"> <text>“Procurement officer” means any person authorized by a procurement agency in accordance with law or regulations to formulate, enter into, or administer contracts or make written determinations and findings with respect to them. The term also includes an authorized representative acting within the limits of authority.</text> </paragraph> <paragraph num="(68)"> <text>“Proposal” means the response by an offeror to a request for proposals issued by a procurement agency to obtain goods or labor. The response may include but is not limited to an offeror's price and terms for the proposed contract, a description of technical expertise, work experience, and other information as requested in the solicitation.</text> </paragraph> <paragraph num="(69)"> <text>“Public improvement” means the construction, maintenance, and repair of any building, structure, or other public work now or hereafter constructed or acquired by the State or any State agency.</text> </paragraph> <paragraph num="(70)"> <text>“Purchase order” means a purchaser's document authorizing a procurement from a vendor. Upon acceptance by a vendor, the purchase order becomes a contract.</text> </paragraph> <paragraph num="(71)"> <text>“Quotation” means bid.</text> </paragraph> <paragraph num="(72)"> <text>“Regulation” has the same definition as set forth in State Government Article, §10-101(3), Annotated Code of Maryland.</text> </paragraph> <paragraph num="(73)"> <text>“Reinstatement” means adding to a contract for services an add alternate bid which had been rejected at the time of award of the contract.</text> </paragraph> <paragraph num="(74)"> <text>“Request for bids” means invitation for bids.</text> </paragraph> <paragraph num="(75)"> <text>“Request for proposals” means any document, whether attached or incorporated by reference, used for soliciting proposals from offerors under any method allowed under this title excluding competitive sealed bidding and comparable small procurement methods.</text> </paragraph> <paragraph num="(76)"> <text>“Request for quotation” means invitation for bids.</text> </paragraph> <paragraph num="(77)"> <text>“Responsible” means a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability that shall assure good faith performance.</text> </paragraph> <paragraph num="(78)"> <text>“Responsive” means a bid submitted in response to an invitation for bids that conforms in all material respects to the requirements contained in the invitation for bids.</text> </paragraph> <paragraph num="(79)"> <text>Services.</text> <paragraph num="(a)"> <text>“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. It includes, but is not limited to, the professional, personal, and/or contractual services provided by attorneys, accountants, physicians, consultants, and other professionals who are independent contractors.</text> </paragraph> <paragraph num="(b)"> <text>“Services” does not include maintenance, construction-related services, architectural services, engineering services, or energy performance contract services.</text> </paragraph> </paragraph> <paragraph num="(80)"> <text>“Small business” means a business as defined in State Finance and Procurement Article, §14-501 (d), Annotated Code of Maryland.</text> </paragraph> <paragraph num="(81)"> <text>“Small business preference” means a purchase request for which the procurement agency invites bids from a list of qualified bidders including small businesses.</text> </paragraph> <paragraph num="(82)"> <text>“Social services” means services procured by the the Maryland Department of Health, the Department of Human Services, the Maryland Department of Labor, the Department of Juvenile Services, the Department of Disabilities, or the Department of Aging in order to provide support, care, or shelter directly to third-party clients under a contract the primary purpose of which is the direct provision of social services.</text> </paragraph> <paragraph num="(83)"> <text>“Solicitation” means invitation for bids, request for proposals, or any other method or instrument used to communicate to potential bidders or offerors a procurement agency's procurement needs.</text> </paragraph> <paragraph num="(84)"> <text>State Agency.</text> <paragraph num="(a)"> <text>“State agency” means any administration, agency, association, authority, board, bureau, college, commission, committee, council, foundation, fund, department, institute, institution, public corporation, service, trust, university, or other unit of the Executive Branch of the State government and includes any subunit within any of these units.</text> </paragraph> <paragraph num="(b)"> <text>“State agency” does not mean or include bicounty, or multicounty, government agencies or political subdivisions of the State, including counties, municipalities, special tax districts, sanitary districts, drainage districts, soil conservation districts, water supply districts, and any entity organized under the general corporation laws of the State.</text> </paragraph> </paragraph> <paragraph num="(84-1)"> <text>“Stevedoring or terminal services” means the loading or unloading of cargo or equipment to or from vessels or the receiving, delivery, handling, or processing of cargo or equipment to or from terminals.</text> </paragraph> <paragraph num="(85)"> <text>“Supplemental agreement” means any contract modification which is accomplished by the mutual action of the parties.</text> </paragraph> <paragraph num="(86)"> <text>“Supplier” means a person that has supplied labor or materials to a contractor in the prosecution of work provided for in a state procurement contract.</text> </paragraph> <paragraph num="(87)"> <text>Supplies.</text> <paragraph num="(a)"> <text>“Supplies” means all tangible personal property, including equipment, and leases of equipment, including necessarily associated services.</text> </paragraph> <paragraph num="(b)"> <text>“Supplies” does not include an interest in real property or tangible personal property acquired or used in connection with an energy performance contract.</text> </paragraph> </paragraph> <paragraph num="(88)"> <text>Supplies and Services for Aeronautics-Related Activities.</text> <paragraph num="(a)"> <text>“Supplies and services for aeronautics-related activities” means supplies and services for aeronautics-related activities as defined in Transportation Article, §5-101(e), Annotated Code of Maryland.</text> </paragraph> <paragraph num="(b)"> <text>“Supplies and services for aeronautics-related activities” includes information processing supplies and services.</text> </paragraph> <paragraph num="(c)"> <text>“Supplies and services for aeronautics-related activities” does not include:</text> <paragraph num="(i)"> <text>Supplies funded by proceeds from State obligation bonds and insurance; or</text> </paragraph> <paragraph num="(ii)"> <text>Banking and financial services under the authority of the State Treasurer.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(89)"> <text>“Telecommunication” means the transmission of information, images, pictures, voice or data by radio, video, or other electronic or impulse means.</text> </paragraph> <paragraph num="(90)"> <text>“Telecommunications equipment, systems, and services” means any equipment, hardware, or software, and any combination of them used primarily for telecommunication, and any maintenance or services performed on this equipment, hardware, or software.</text> </paragraph> <paragraph num="(91)"> <text>“Term contract” means a standing blanket order agreement between a contractor and the State covering a specific time period through which the State may obtain a specified or unspecified amount of a supply, service, or maintenance.</text> </paragraph> <paragraph num="(92)"> <text>“Third-party clients” means persons who are receiving human, social, cultural, or educational services primarily because they are aged, indigent, disadvantaged, unemployed, mentally or physically ill, handicapped, displaced, or minors.</text> </paragraph> <paragraph num="(93)"> <text>Repealed.</text> </paragraph> <paragraph num="(94)"> <text>“Treasurer” means the Treasurer of the State of Maryland.</text> </paragraph> <paragraph num="(95)"> <text>“University” or “University of Maryland” means the University System of Maryland.</text> </paragraph> <paragraph num="(96)"> <text>“Using agency” means any State agency that uses any goods or labor procured under this title.</text> </paragraph> <paragraph num="(97)"> <text>“Vendor” means a person who desires to enter into a contract with the State.</text> </paragraph> <paragraph num="(98)"> <text>“Vendor list” means a compilation of the names and addresses of vendors that have submitted a bidder's application to a procurement agency.</text> </paragraph> <paragraph num="(99)"> <text>“Voucher” means a claim for reimbursement of funds resulting from an expenditure related to official State business.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§3.5-301, 11-101, 12-101, 13-101 and 13-108, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective May 21, 1984 (11:10 Md. R. 865)</annotation> <annotation type="History" subtype="Administrative History">Regulations .20A, .36, .40, and .61A amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulations .23 and .29 amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulations .23 and .29 adopted, .28 and .71 amended effective May 6, 1985 (12:9 Md. R. 814)</annotation> <annotation type="History" subtype="Administrative History">Regulation .24-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulation .27-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulation .36-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulations .38-1, .52-1, and .74 adopted as an emergency provision effective July 1, 1982 (9:15 Md. R. 1509); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1984)</annotation> <annotation type="History" subtype="Administrative History">Regulation .43-1 adopted as an emergency provision effective July 1, 1982 (9:15 Md. R. 1510); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1983)</annotation> <annotation type="History" subtype="Administrative History">Regulation .61B amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .61B amended effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulation .63-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulation .64 amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1509); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1984)</annotation> <annotation type="History" subtype="Administrative History">Regulation .68-1 amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .68-1 amended effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective September 2, 1991 (18:17 Md. R. 1922); August 1, 1994 (21:15 Md. R. 1307); December 4, 1995 (22:24 Md. R. 1904); January 12, 1998 (25:1 Md. R. 17); January 26, 1998 (25:2 Md. R. 79); March 8, 1999 (26:5 Md. R. 393); October 18, 1999 (26:21 Md. R. 1631); March 18, 2002 (29:5 Md. R. 505); May 12, 2003 (30:9 Md. R. 615); April 11, 2005 (32:7 Md. R. 685); April 7, 2008 (35:7 Md. R. 751); February 23, 2009 (36:4 Md. R. 355); September 3, 2012 (39:17 Md. R. 1149); May 13, 2013 (40:9 Md. R. 789); April 28, 2014 (41:8 Md. R. 473); July 21, 2014 (41:14 Md. R. 799); January 2, 2017 (43:26 Md. R. 1449); March 11, 2019 (46:5 Md. R. 310); July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643); September 5, 2022 (49:18 Md. R. 819); September 18, 2023 (50:18 Md. R. 800): March 3, 2025 (52:4 Md. R. 221)</annotation> </annotations> </chapter> <chapter num="03" heading="Applicability"> <regulation prefix="Regulation" num=".01" heading="Exemptions."> <paragraph num="A."> <text>The following are exempt from applicability of this title:</text> <paragraph num="(1)"> <text>Reimbursement contracts (Judicare, Medicaid, Medicare, or similar reimbursement contracts) for which user eligibility and cost are set by law or by rules and regulations;</text> </paragraph> <paragraph num="(2)"> <text>Collective bargaining agreements with employee organizations (labor contracts);</text> </paragraph> <paragraph num="(3)"> <text>Purchase of land, and a permanent or temporary interest in land;</text> </paragraph> <paragraph num="(4)"> <text>Contracts or like business agreements between a State agency and:</text> <paragraph num="(a)"> <text>Another State agency, except as provided under COMAR 21.05.12.02B;</text> </paragraph> <paragraph num="(b)"> <text>An agency or political subdivision of the State or other governments, except as provided under COMAR 21.05.12.02B;</text> </paragraph> <paragraph num="(c)"> <text>A government, including the government of another state, of the United States, or of another country; or</text> </paragraph> <paragraph num="(d)"> <text>A bistate, multistate, bicounty, or multicounty governmental agency.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>Procurement by bistate or multistate governmental agencies;</text> </paragraph> <paragraph num="(6)"> <text>Procurement by bicounty or multicounty governmental agencies;</text> </paragraph> <paragraph num="(7)"> <text>Procurement by political subdivisions of the State, including counties, municipalities, sanitary districts, drainage districts, soil conservation districts, and water supply districts;</text> </paragraph> <paragraph num="(8)"> <text>Disposal of surplus or excess real or personal property;</text> </paragraph> <paragraph num="(9)"> <text>Procurement in support of enterprise activities for purposes of direct resale or remanufacture and subsequent resale;</text> </paragraph> <paragraph num="(10)"> <text>Agreements creating contractual employee relationships, as set forth in State Personnel and Pensions Article, §13-101, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(11)"> <text>Procurements by the Maryland State Planning Council on Developmental Disabilities for services to support demonstration, pilot, and training programs;</text> </paragraph> <paragraph num="(12)"> <text>Procurements by the Maryland State Arts Council for the promotion or support of the arts;</text> </paragraph> <paragraph num="(13)"> <text>The Blind Industries and Services of Maryland;</text> </paragraph> <paragraph num="(14)"> <text>The Maryland Health and Higher Educational Facilities Authority to the extent that no monies of the State are to be expended on a contract;</text> </paragraph> <paragraph num="(15)"> <text>The Maryland Higher Education Supplemental Loan Authority to the extent that no monies of the State are to be expended on a contract;</text> </paragraph> <paragraph num="(16)"> <text>The Maryland Industrial Training Program and the Partnership for Workforce Quality Program in the Department of Commerce for training services or programs for new or expanding businesses or industries or businesses or industries in transition;</text> </paragraph> <paragraph num="(17)"> <text>The Board of Trustees of the State Retirement and Pension System, except as provided by State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, and COMAR 21.11.03, for:</text> <paragraph num="(a)"> <text>Services of managers to invest the assets of the State Retirement and Pension System, including real and personal property;</text> </paragraph> <paragraph num="(b)"> <text>Expenditures to manage, maintain, and enhance the value of the assets of the State Retirement and Pension System in accordance with investments guidelines adopted by the Board of Trustees;</text> </paragraph> <paragraph num="(c)"> <text>Services related to the administration of the optional retirement program under State Personnel and Pensions Article, Title 30, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(d)"> <text>Expenditures for the safe custody, domestic or global, of investments as provided under State Personnel and Pensions Article, §21-123(f), Annotated Code of Maryland;</text> </paragraph> </paragraph> <paragraph num="(18)"> <text>The Maryland Food Center Authority to the extent the Authority is exempt under Article 41, Title 13, Subtitle 1, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(19)"> <text>The Maryland Public Broadcasting Commission:</text> <paragraph num="(a)"> <text>For artists' services for educational and cultural television productions; or</text> </paragraph> <paragraph num="(b)"> <text>When planning for or fulfilling the obligations of grants or cooperative agreements that support the educational and cultural activities of the Commission;</text> </paragraph> </paragraph> <paragraph num="(20)"> <text>Public institutions of higher education for cultural, entertainment, and intercollegiate athletic contracts;</text> </paragraph> <paragraph num="(21)"> <text>The Maryland Environmental Service except with respect to State Finance and Procurement Article, Title 14, Subtitle 3, and Titles 16 and 17, Annotated Code of Maryland, and the regulations adopted under these statutes;</text> </paragraph> <paragraph num="(22)"> <text>The Maryland Automobile Insurance Fund;</text> </paragraph> <paragraph num="(23)"> <text>The Maryland Historical Trust for:</text> <paragraph num="(a)"> <text>Surveying and evaluating architecturally, archaeologically, historically, or culturally significant properties; and</text> </paragraph> <paragraph num="(b)"> <text>Other than as to architectural services, preparing historic preservation planning documents and educational material;</text> </paragraph> </paragraph> <paragraph num="(24)"> <text>The University System of Maryland and Morgan State University, as set forth in Regulation .01-1 of this chapter.</text> </paragraph> <paragraph num="(25)"> <text>The Maryland Stadium Authority except as provided by State Finance and Procurement Article, Title 14, Subtitles 3 and 5, Annotated Code of Maryland, COMAR 21.11.03 and 21.11.01.06;</text> </paragraph> <paragraph num="(26)"> <text>St. Mary's College of Maryland, as set forth in Regulation .01-1 of this chapter;</text> </paragraph> <paragraph num="(27)"> <text>The Department of Commerce, for negotiating and entering into private sector cooperative marketing projects that directly enhance promotion of Maryland and the tourism industry where there will be a private sector contribution to the project of not less than 50 percent of the total cost of the project, if the project is reviewed by the Attorney General and approved by the Secretary of Commerce or the Secretary's designee;</text> </paragraph> <paragraph num="(28)"> <text>The Rural Maryland Council;</text> </paragraph> <paragraph num="(29)"> <text>The Maryland State Lottery Agency, for negotiating and entering into private sector cooperative marketing projects that directly enhance promotion of the Maryland State Lottery and its products, if the cooperative marketing project:</text> <paragraph num="(a)"> <text>Provides a substantive promotional or marketing value that the Lottery determines acceptable in exchange for advertising or other promotional activities provided by the Lottery;</text> </paragraph> <paragraph num="(b)"> <text>Does not involve advertising or promoting alcohol or tobacco products; and</text> </paragraph> <paragraph num="(c)"> <text>Is reviewed by the Attorney General and approved by the Maryland Lottery Director or the Director's designee;</text> </paragraph> </paragraph> <paragraph num="(30)"> <text>The Maryland Health Insurance Plan established under Insurance Article, Title 14, Subtitle 5, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(31)"> <text>The Maryland Energy Administration, when negotiating or entering into grants or cooperative agreements with private entities to meet federal specifications or solicitation requirements related to energy conservation, energy efficiency, or renewable energy projects that benefit the State; and</text> </paragraph> <paragraph num="(32)"> <text>Except as provided by State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, and COMAR 21.11.03, the Maryland Developmental Disabilities Administration of the Maryland Department of Health for family and individual support services, and individual family care services, as those terms are defined by the Maryland Department of Health in COMAR Title 10;</text> </paragraph> <paragraph num="(33)"> <text>Except as provided by State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, and COMAR 21.11.03, the College Savings Plans of Maryland for:</text> <paragraph num="(a)"> <text>Services of managers to invest the assets of the Maryland Prepaid College Trust in accordance with the comprehensive investment plan adopted by the College Savings Plans of Maryland Board under Education Article, §18-906, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(b)"> <text>Expenditures to manage, maintain, and enhance the value of the assets of the Maryland Prepaid College Trust in accordance with the Comprehensive Investment Plan adopted by the College Savings Plans of Maryland Board under Education Article, §18-906, Annotated Code of Maryland;</text> </paragraph> </paragraph> <paragraph num="(34)"> <text>A contract or grant awarded by a unit of State government to the Chesapeake Bay Trust for a project involving the restoration or protection of the Chesapeake Bay and other aquatic and land resources of the State;</text> </paragraph> <paragraph num="(35)"> <text>The Department of General Services for the rehabilitation of a structure that is listed in or eligible for listing in the National Register of Historic Places, to the extent the procurement is necessary to preserve the historic fabric of the structure impacted by the rehabilitations, as determined by the Department of General Services in consultation with the Maryland Historical Trust;</text> </paragraph> <paragraph num="(35-1)"> <text>The Department of Natural Resources, for negotiating or entering into grants, agreements, or partnerships with nonprofit entities related to conservation service opportunities;</text> </paragraph> <paragraph num="(35-2)"> <text>The Maryland Clean Energy Center, except as provided by State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(35-3)"> <text>The State Archives for preservation, conservation, proper care, restoration, and transportation of fine art or decorative art that is in the custody of the Commission on Artistic Property and owned by or loaned to the State;</text> </paragraph> <paragraph num="(35-4)"> <text>The Board of Trustees of the Maryland Teachers and State Employees Supplement Retirement Plans, except as provided in State Finance and Procurement Article, Title 12, Subtitle 4, and Title 14, Subtitle 3, Annotated Code of Maryland, for:</text> <paragraph num="(a)"> <text>Services of managers to invest the assets deposited and invested in investment options of the supplemental retirement plans in accordance with the statements of investment policy adopted by the Board of Trustees of the Maryland Teachers and State Employees Supplement Retirement Plans;</text> </paragraph> <paragraph num="(b)"> <text>Expenditures to manage, maintain, and enhance the value of assets deposited and invested in investment options of the supplemental retirement plans selected in accordance with the statements of investment policy adopted by the Board of Trustees of the Maryland Teachers and State Employees Supplement Retirement Plans from time to time; and</text> </paragraph> <paragraph num="(c)"> <text>Expenditures for the safe custody, domestic or global, of assets deposited and invested in investment options of the supplemental retirement plans selected in accordance with State Personnel and Pensions Article, §35-302(b), Annotated Code of Maryland; and</text> </paragraph> </paragraph> <paragraph num="(36)"> <text>Other units that are specifically exempted by law.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The provisions of State Finance and Procurement Article, §§10-204, 11-205, 13-219, 13-221, §15-112, Title 12, Subtitles 2 and 4, Title 16, and Title 17, Annotated Code of Maryland, apply to procurements referred to in §A(4), (9), (11)—(16), (18)—(20), (22)—(23), and (26)—(31) of this regulation. The provisions of State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland, apply to all procurements referred to in §A of this regulation except §A(1)—(3), (4)(a) and (d), (5)—(8), (10), and (13) of this regulation.</text> </paragraph> <paragraph num="C."> <text>The provisions of State Finance and Procurement Article, Title 12, Subtitle 4, Annotated Code of Maryland, apply to each unit with an exemption from any provision of Division II of the State Finance and Procurement Article except:</text> <paragraph num="(1)"> <text>The Maryland Health and Higher Educational Facilities Authority if no State money is to be spent on a procurement contract;</text> </paragraph> <paragraph num="(2)"> <text>Procurement pursuant to State Finance and Procurement Article, §11-203(a)(2), Annotated Code of Maryland;</text> </paragraph> <paragraph num="(3)"> <text>The University System of Maryland;</text> </paragraph> <paragraph num="(4)"> <text>Morgan State University; and</text> </paragraph> <paragraph num="(5)"> <text>St. Mary's College of Maryland.</text> </paragraph> </paragraph> <paragraph num="D."> <text>The provisions of State Finance and Procurement Article, §17-502, Annotated Code of Maryland, apply to:</text> <paragraph num="(1)"> <text>A unit of State government;</text> </paragraph> <paragraph num="(2)"> <text>A county within the State;</text> </paragraph> <paragraph num="(3)"> <text>A municipality within the State;</text> </paragraph> <paragraph num="(4)"> <text>A bicounty or multicounty governmental agency;</text> </paragraph> <paragraph num="(5)"> <text>A special tax district, sanitary district, drainage district, soil conservation district, and water supply district;</text> </paragraph> <paragraph num="(6)"> <text>A public institution of higher education;</text> </paragraph> <paragraph num="(7)"> <text>A public school; and</text> </paragraph> <paragraph num="(8)"> <text>Each entity exempt from the provisions of State Finance and Procurement Article, Division II, Annotated Code of Maryland, except for the Maryland Health and Higher Educational Facilities Authority.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".01-1" heading="Public Universities and Colleges."> <paragraph num="A."> <text>Except as provided in this regulation, the University System of Maryland, Morgan State University, Baltimore City Community College, and St. Mary’s College of Maryland are exempt from applicability of this title and Division II of the State Finance and Procurement Article, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>Applicable Provisions of State Finance and Procurement Article, Annotated Code of Maryland.</text> <paragraph num="(1)"> <text>The following provisions of State Finance and Procurement Article, Annotated Code of Maryland, apply to the University System of Maryland, Morgan State University, Baltimore City Community College, and St. Mary’s College of Maryland:</text> <paragraph num="(a)"> <text>§11-205 (Collusion);</text> </paragraph> <paragraph num="(b)"> <text>§11-205.1 (Falsification, Concealment, etc., of Material Facts);</text> </paragraph> <paragraph num="(c)"> <text>§13-219 (Nondiscrimination Clause);</text> </paragraph> <paragraph num="(d)"> <text>§13-225 (Retainage);</text> </paragraph> <paragraph num="(e)"> <text>§15-226 (Prompt Payment of Subcontractors);</text> </paragraph> <paragraph num="(f)"> <text>Title 14, Subtitle 3 (Minority Business Enterprise Participation) and Subtitle 7 (Certified Local Farm Enterprise Program);</text> </paragraph> <paragraph num="(g)"> <text>Title 15, Subtitle 1 (Procurement Contract Administration);</text> </paragraph> <paragraph num="(h)"> <text>Title 16 (Suspension and Debarment of Contractors);</text> </paragraph> <paragraph num="(i)"> <text>Title 17, Subtitle 5 (eMaryland Marketplace — Use by Certain Persons); and</text> </paragraph> <paragraph num="(j)"> <text>§14-110(b) and (c) (Preferred Provider Reporting).</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>State Finance and Procurement Article, Title 14, Subtitle 2 (Small Business Preference Program) applies to the University System of Maryland and Morgan State University.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The University System of Maryland, Morgan State University, Baltimore City Community College, and St. Mary’s College of Maryland shall conduct procurements under procedures that promote the purposes stated in State Finance and Procurement Article, §11-201, Annotated Code of Maryland.</text> </paragraph> <paragraph num="D."> <text>The requirements of §§B and C of this regulation do not apply to:</text> <paragraph num="(1)"> <text>Procurement by the University System of Maryland, Morgan State University, Baltimore City Community College, or St. Mary’s College of Maryland from:</text> <paragraph num="(a)"> <text>Another unit,</text> </paragraph> <paragraph num="(b)"> <text>A political subdivision of the State,</text> </paragraph> <paragraph num="(c)"> <text>An agency of a political subdivision of the State,</text> </paragraph> <paragraph num="(d)"> <text>A government, including the government of another state, of the United States, or of another country,</text> </paragraph> <paragraph num="(e)"> <text>An agency or political subdivision of a government, or</text> </paragraph> <paragraph num="(f)"> <text>A bistate, multistate, bicounty, or multicounty governmental agency;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Procurement by the University System of Maryland, Morgan State University, Baltimore City Community College, or St. Mary’s College of Maryland in support of enterprise activities for the purpose of:</text> <paragraph num="(a)"> <text>Direct resale,</text> </paragraph> <paragraph num="(b)"> <text>Remanufacture and subsequent resale, or</text> </paragraph> <paragraph num="(c)"> <text>Overseas programs; or</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Procurement by the University System of Maryland for:</text> <paragraph num="(a)"> <text>Services of managers to invest, in accordance with the management and investment policies adopted by the Board of Regents, gift and endowment assets received by the University in accordance with Education Article §12-104(e), Annotated Code of Maryland; or</text> </paragraph> <paragraph num="(b)"> <text>Expenditures to manage, maintain, and enhance, in accordance with the management and investment policies adopted by the Board of Regents, the value of gifts and endowment assets received by the University in accordance with the Education Article §12-104(e), Annotated Code of Maryland.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Before entering into a contract for services that exceeds $1,000,000 ($500,000 for Baltimore City Community College) or a contract for capital improvements with a value that exceeds $1,000,000 ($500,000 for Baltimore City Community College), the University System of Maryland, Morgan State University, Baltimore City Community College, and St. Mary’s College of Maryland shall obtain the review and approval of the Board of Public Works by submitting an Action Agenda item pursuant to COMAR 21.02.01.05A(2)(d).</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="General Applicability."> <paragraph num="A."> <text>These regulations apply to every expenditure by a State agency for the acquisition, rental, purchase, or lease of supplies, services, maintenance, construction, construction-related services, architectural services, engineering services, and the lease of real property by the State as lessee. These regulations also apply to certain revenue-producing contracts as set forth in Regulation .03B of this chapter.</text> </paragraph> <paragraph num="B."> <text>Each regulation adopted under this title that is in effect on the date of award of any procurement contract, unless otherwise indicated in the regulation, is applicable to the contract.</text> </paragraph> <paragraph num="C."> <text>A regulation adopted under this title may not change any right or obligation under a procurement contract in existence before the effective date of the regulation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Organizational Applicability."> <paragraph num="A."> <text>Every State agency is subject to the provisions of these regulations unless expressly exempted by this title or by statute.</text> </paragraph> <paragraph num="B."> <text>Specifically subject to these regulations are:</text> <paragraph num="(1)"> <text>Procurements by a State agency, even if a resulting procurement contract will involve no expenditure by the State and will produce revenue for the State for services that are to be provided for the benefit of:</text> <paragraph num="(a)"> <text>State officials, State employees, or students at a State facility, including a school, hospital, institution, or recreational facility;</text> </paragraph> <paragraph num="(b)"> <text>Clients or patients at a State hospital or State institution;</text> </paragraph> <paragraph num="(c)"> <text>The public at a State recreational facility;</text> </paragraph> <paragraph num="(d)"> <text>The public at a State transportation facility, unless a revenue-producing contract involves:</text> <paragraph num="(i)"> <text>A license, permit, or similar permission to use State facilities for activities related to the movement of passengers or goods, or for providing goods or services to passengers, patrons, or tenants at a transportation facility, or for advertising or promotional purposes; or</text> </paragraph> <paragraph num="(ii)"> <text>A lease of State property under State Finance and Procurement Article, Title 10, Subtitle 3, Annotated Code of Maryland; or</text> </paragraph> </paragraph> <paragraph num="(e)"> <text>The public at a State higher education facility unless a revenue-producing contract involves:</text> <paragraph num="(i)"> <text>Research contracts or grants sponsored by third parties,</text> </paragraph> <paragraph num="(ii)"> <text>Administration of intellectual property rights,</text> </paragraph> <paragraph num="(iii)"> <text>Housing, food, and related supply or service contracts for conference facilities, or</text> </paragraph> <paragraph num="(iv)"> <text>Permission for exhibitions or displays on campus property;</text> </paragraph> </paragraph> </paragraph> <paragraph num="(2)"> <text>Each procurement by a State agency on behalf of another governmental agency or other entity; and</text> </paragraph> <paragraph num="(3)"> <text>Procurements by the Executive Director of the Somers Cove Marina Commission of goods, services, capital improvements, design, and maintenance with an expected value exceeding $200,000.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Conflicts."> <text>This title does not apply to any procurement or contract to the extent of any conflict with:</text> <paragraph num="A."> <text>A governing federal law, regulation, assistance instrument, or other requirement; or</text> </paragraph> <paragraph num="B."> <text>The terms of any gift as defined in Article 1, §22, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Waiver or Modification of Requirement for Contracts to be Performed Outside the United States."> <text>Except as set forth in State Finance and Procurement Article, §12-104(b), Annotated Code of Maryland, the Board may modify or waive the requirements of this title as to a procurement contract or a class of contracts that are to be performed entirely outside the United States to the extent:</text> <paragraph num="A."> <text>The basic purposes of State Finance and Procurement Article, §11-201, Annotated Code of Maryland, are maintained;</text> </paragraph> <paragraph num="B."> <text>The circumstances of the procurement require the modification or waiver; and</text> </paragraph> <paragraph num="C."> <text>Foreign contractors are expected to be involved in the procurement.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Waiver."> <text>The Board of Public Works may waive or vary particular provisions of this title to the extent that the waiver or variance is not inconsistent with State statutes if:</text> <paragraph num="A."> <text>In the Board of Public Works' determination, the application of a regulation in a specific case or in an emergency situation would be inequitable or contrary to the purposes of State law; and</text> </paragraph> <paragraph num="B."> <text>The Office of the Attorney General approves the waiver for form and legal sufficiency.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Renewable Energy Contracts — Waiver of Mandatory Termination Clause."> <paragraph num="A."> <text>For contracts procuring energy generated from a Tier 1 or a Tier 2 renewable source as defined in Public Utility Companies Article, §7-701, Annotated Code of Maryland, and on the recommendation of the Secretary of General Services, the Board may modify or waive the requirement to include an automatic termination clause in multi-year contracts provided in COMAR 21.07.01.10.</text> </paragraph> <paragraph num="B."> <text>In determining whether to modify or waive the requirement, the Board of Public Works shall consider the effect of requiring the termination clause under COMAR 21.07.01.10 on the ability of the energy supplier to obtain financing for the renewable energy generation project that produces the energy that the State is procuring.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="MARC Service."> <paragraph num="A."> <text>An entity as defined in State Finance and Procurement Article, §12-501, Annotated Code of Maryland, that submits a bid or proposal in response to a Department of Transportation solicitation for Maryland Area Regional Commuter (MARC) service that is funded wholly or in part with public funds shall comply with the requirements of State Finance and Procurement Article, Title 12, Subtitle 5, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>An entity awarded a procurement contract to provide MARC service in accordance with State Finance and Procurement Article, §12-509(c), Annotated Code of Maryland, is considered to have satisfied the requirements of State Finance and Procurement Article, §§12-505—12-507, Annotated Code of Maryland, for all future procurement contracts to provide MARC service.</text> </paragraph> <paragraph num="C."> <text>A bidder or offeror for a procurement contract to provide MARC service may not submit a bid protest under COMAR 21.10.02 relating to the requirements of State Finance and Procurement Article, Title 12, Subtitle 5, Annotated Code of Maryland.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">Natural Resources Article, §3-103; State Finance and Procurement Article, §§11-201—11-203, 12-101, 12-104, and 17-502; Annotated Code of Maryland; Ch. 198, Acts of 2009; Chs. 428, 495, and 713, Acts of 2010; Chs. 108, 111, and 268, Acts of 2017; Ch. 273, Acts of 2019</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01 and .03B amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective January 26, 1998 (25:2 Md. R. 79); March 8, 1999 (26:5 Md. R. 393); October 18, 1999 (26:21 Md. R. 1631); November 7, 2005 (32:22 Md. R. 1759); March 12, 2007 (34:5 Md. R. 562); February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective April 7, 2008 (35:7 Md. R. 751); January 14, 2010 (37:1 Md. R. 15); February 7, 2011 (38:3 Md. R. 152); March 11, 2019 (46:5 Md. R. 310); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective March 13, 2006 (33:5 Md. R. 523); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01C adopted effective March 13, 2006 (33:5 Md. R. 523)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01-1 adopted effective October 18, 1999 (26:21 Md. R. 1631)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01-1 amended effective November 7, 2005 (32:22 Md. R. 1759); March 12, 2007 (34:5 Md. R. 562); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01-1B amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01-1E amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended effective March 5, 2012 (39:4 Md. R. 338); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 adopted effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 adopted effective February 7, 2011 (38:3 Md. R. 152)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> </annotations> </chapter> </subtitle> <subtitle num="02" heading="State Procurement Organization"> <chapter num="01" heading="Board of Public Works"> <regulation prefix="Regulation" num=".01" heading="Power and Authority Over Procurement."> <text>Except as provided in State Finance and Procurement Article, §12-101, Annotated Code of Maryland, the Board may control all procurement by State agencies.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Duties, Responsibilities, and Authority Over Procurement and Contracting."> <paragraph num="A."> <text>For the purpose of carrying out the provisions of State Finance and Procurement Article of the Annotated Code of Maryland, the Board has been vested with the authority to set policy and to adopt regulations which are consistent with those provisions.</text> </paragraph> <paragraph num="B."> <text>The Board may exercise any authority conferred on a department by State Finance and Procurement Article of the Annotated Code of Maryland and, to the extent that its action in exercising this authority is inconsistent with the action of any department, the action of the Board shall prevail.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Designation of Control and Procurement Authorities."> <paragraph num="A."> <text>Control Authorities. The Board recognizes the following control authorities:</text> <paragraph num="(1)"> <text>State Treasurer;</text> </paragraph> <paragraph num="(2)"> <text>Department of General Services;</text> </paragraph> <paragraph num="(3)"> <text>Department of Transportation; and</text> </paragraph> <paragraph num="(4)"> <text>Maryland Port Commission.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Procurement Authorities. Subject to this title, the departments have the authority to establish certain procurement and contracting procedures. The departments and other State agencies as specifically provided by law have the authority, where delegated, to approve the award of certain contracts as provided under this chapter.</text> </paragraph> <paragraph num="C."> <text>Board of Public Works Procurement. The Board retains full control and procurement authority over its own procurements. The Board, by resolution, may authorize any of its members, any department, or any procurement agency to exercise all or any part of this authority with regard either to specific procurements or to particular classes of the Board's procurements.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Delegation of Procurement and Contracting Authority."> <paragraph num="A."> <text>Notwithstanding the following delegations in §B of this regulation, a contract funded with general obligation bond proceeds must be approved by the Board regardless of amount in accordance with State Finance and Procurement Article, §8-301, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>The Department of General Services. The Board hereby delegates authority to the Secretary of General Services for the approval and award of the following procurement contracts within the Department’s jurisdiction:</text> <paragraph num="(1)"> <text>Except for insurance, insurance related, banking, investment, and financial services, the following contracts, contract actions, and awards: Capital construction contracts, construction-related services contracts, information technology contracts, including information processing equipment, cloud computing equipment and associated services, and information technology system modernization, as provided in State Finance and Procurement Article, Title 3.5, Subtitle 3, Annotated Code of Maryland, telecommunication equipment systems or services as provided in State Finance and Procurement Article, Title 3.5, Subtitle 4, Annotated Code of Maryland, service contracts, architectural and engineering contracts, maintenance contracts, contracts for rental vehicles supplied to using agencies in accordance with COMAR 21.02.05.08, secondary competition awards, renewal options, and modifications in accordance with COMAR 21.05.13.06, capital construction change orders, capital construction-related service change orders, information processing equipment and associated services change orders, cloud computing services change orders, and information technology system and cybersecurity upgrades change orders in accordance with State Finance and Procurement Article, Title 3.5, Subtitle 3, in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(2)"> <text>All contracts for the purchase of commodities or supplies, except as provided in §B(3) of this regulation and except for insurance and insurance-related services.</text> </paragraph> <paragraph num="(3)"> <text>Contracts or Leases that Include any Single Item of Equipment That is $200,000 or Less. Contracts or leases including any single item of equipment that is more than $200,000 must be approved by the Board.</text> </paragraph> <paragraph num="(4)"> <text>Invoices necessary for the administration of capital improvement contracts;</text> </paragraph> <paragraph num="(5)"> <text>Contract modifications, excluding construction contract change orders, that:</text> <paragraph num="(a)"> <text>Do not materially change the scope of the original contract;</text> </paragraph> <paragraph num="(b)"> <text>Individually do not change the amount of the contract, or any cost component of the contract, by more than $50,000; or</text> </paragraph> <paragraph num="(c)"> <text>Exercise by a using agency a contract option of $200,000 or less;</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>Contracts in the amount of $100,000 or less resulting from sole source procurement;</text> </paragraph> <paragraph num="(7)"> <text>Contracts in the amount of $50,000 or less resulting from competitive [procurement] sealed bidding or competitive sealed proposals procurements in which only one bid or offer was received;</text> </paragraph> <paragraph num="(8)"> <text>Leases for agency-supplied employee housing;</text> </paragraph> <paragraph num="(9)"> <text>Purchasing, leasing, and rental contracts for the acquisition of motor vehicles for use by State officials and employees, pursuant to State Finance and Procurement Article, Title 3, Subtitle 5, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(10)"> <text>Procurements by the Department for the purpose of modernizing cybersecurity infrastructure for the State valued below $1,000,000; and</text> </paragraph> <paragraph num="(11)"> <text>Energy Performance Contracts.</text> <paragraph num="(a)"> <text>A procurement agency shall consult with the Department of General Services during the development phase of a project that will require an energy performance contract.</text> </paragraph> <paragraph num="(b)"> <text>Before issuing a request for proposals for an energy performance contract, a procurement agency shall consult with the Department of General Services and the Chief Procurement Officer.</text> </paragraph> <paragraph num="(c)"> <text>The Department of General Services shall review the proposed request to ensure that it meets with the State energy standards and preserves the State’s flexibility to investigate and use economically justifiable new technologies.</text> </paragraph> <paragraph num="(d)"> <text>A procuring agency pursuing an energy contract must receive final approval from the Department of General Services before submitting the proposed contract to the Board of Public Works for approval.</text> </paragraph> <paragraph num="(e)"> <text>Notwithstanding any other provision of law and subject to the approval and control of the Board of Public Works and the Chief Procurement Officer, a unit of State government is authorized to enter into energy performance contracts of up to 30 years’ duration.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>The Department of Transportation.</text> <paragraph num="(1)"> <text>The Board hereby delegates authority to the Secretary of Transportation and to the Maryland Transportation Authority for the approval and award of the following procurement contracts within their respective jurisdictions:</text> <paragraph num="(a)"> <text>Transportation-related construction contracts and change orders in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(b)"> <text>Capital construction-related service contracts and change orders in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(c)"> <text>Architectural and engineering contracts in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(d)"> <text>Maintenance contracts in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(e)"> <text>All contracts for transportation-related commodities and supplies, including equipment contracts and leases, but excluding equipment contracts and leases including any single item of equipment that is more than $200,000;</text> </paragraph> <paragraph num="(f)"> <text>Contract modifications, excluding construction contract change orders, that:</text> <paragraph num="(i)"> <text>Do not materially change the scope of the original contract;</text> </paragraph> <paragraph num="(ii)"> <text>Individually do not change the amount of the contract, or any cost component of the contract, by more than $50,000; or</text> </paragraph> <paragraph num="(iii)"> <text>Exercise a contract option of $200,000 or less;</text> </paragraph> </paragraph> <paragraph num="(g)"> <text>Contracts in the amount of $100,000 or less resulting from sole source procurement;</text> </paragraph> <paragraph num="(h)"> <text>Contracts in the amount of $50,000 or less resulting from competitive sealed bidding or competitive sealed proposals procurements in which only one bid or offer was received;</text> </paragraph> <paragraph num="(i)"> <text>All procurements for aeronautics related services, commodities and supplies, including equipment contracts and leases, but excluding banking, insurance, insurance-related, investment, and financial services; and</text> </paragraph> <paragraph num="(j)"> <text>Secondary competition awards, renewal options, and modifications in accordance with COMAR 21.05.13.06 in the amount of $200,000 or less.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The Secretary of Transportation and the Maryland Transportation Authority have procurement and contracting authority for capital expenditure contracts in connection with State roads, bridges, or highways.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Repealed.</text> </paragraph> <paragraph num="E."> <text>The Treasurer. The Board hereby delegates authority to the Treasurer for the approval and award of the following procurement contracts within the Treasurer’s jurisdiction:</text> <paragraph num="(1)"> <text>Banking, investment, and other financial services contracts authorized by State Finance and Procurement Article, §12-107, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(2)"> <text>Contracts for insurance and insurance-related services obtained pursuant to State Finance and Procurement Article, Title 9 and §12-107, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Maryland Port Commission. The Board hereby delegates authority to the Chairman of the Maryland Port Commission for the approval and award of the following procurement contracts within the Maryland Port Commission’s jurisdiction:</text> <paragraph num="(1)"> <text>Construction contracts and change orders for Port facilities in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(2)"> <text>Construction-related service contracts and change orders for Port facilities in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(3)"> <text>Port-related architectural services and engineering services contracts in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(4)"> <text>Port-related maintenance contracts in the amount of $200,000 or less;</text> </paragraph> <paragraph num="(5)"> <text>Except as provided in §F(6) of this regulation, contracts for the purchase of commodities and supplies, including motor vehicles and information technology supplies, but excluding insurance and insurance-related services;</text> </paragraph> <paragraph num="(6)"> <text>Contracts or leases within the procurement authority of the Maryland Port Commission that include any single item of equipment that is $200,000 or less, and contracts or leases that include any single item of equipment that is more than $200,000 must be approved by the Board.</text> </paragraph> <paragraph num="(7)"> <text>Contract modifications, excluding construction contract change orders, that:</text> <paragraph num="(a)"> <text>Do not materially change the scope of the original contract;</text> </paragraph> <paragraph num="(b)"> <text>Individually do not change the amount of a contract, or any cost component of the contract, by more than $50,000;</text> </paragraph> <paragraph num="(c)"> <text>Exercise a contract option of $200,000 or less; or</text> </paragraph> <paragraph num="(d)"> <text>Change cargo and equipment handling rates in stevedoring or terminal services contracts approved by the Board when the contract modification, either individually or in combination with previous contract modifications, does not change the price of the original contract by more than 20 percent.</text> </paragraph> </paragraph> <paragraph num="(8)"> <text>Service contracts for the Maryland Port Administration in the amount of $200,000 or less, including information technology services, but excluding banking, insurance, insurance-related, investment, and financial services;</text> </paragraph> <paragraph num="(9)"> <text>Contracts in the amount of $100,000 or less resulting from sole source procurement;</text> </paragraph> <paragraph num="(10)"> <text>Contracts in the amount of $50,000 or less resulting from competitive sealed bidding or competitive sealed proposals procurements in which only one bid or offer was received; and</text> </paragraph> <paragraph num="(11)"> <text>Leases of real property for Port-related activities having a value of $50,000 or less per year, and provided the lease payments, in whole or in part, are not paid from the General Fund. (The real property leases governed by this regulation shall be reported to the Board on the Maryland Port Commission Procurement Agency Activity Report (PAAR) at the earliest practicable time.)</text> </paragraph> </paragraph> <paragraph num="G."> <text>Repealed.</text> </paragraph> <paragraph num="H."> <text>Repealed.</text> </paragraph> <paragraph num="I."> <text>A unit may not artificially divide a procurement contract or contract modification to avoid obtaining Board approval.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Review and Approval of the Award of Procurement Contracts."> <paragraph num="A."> <text>Action Agendas.</text> <paragraph num="(1)"> <text>Except as otherwise provided in COMAR 21.05.06, the Board shall review and approve the award of those procurement contracts not delegated under this chapter, before execution.</text> </paragraph> <paragraph num="(2)"> <text>The departments shall prepare a separate item for each procurement contract not delegated under this chapter, and shall submit the items to the Board in accordance with the following procedures:</text> <paragraph num="(a)"> <text>The Department of General Services shall submit the items on the Department of General Services Action Agenda;</text> </paragraph> <paragraph num="(b)"> <text>The Department of Transportation and the Maryland Transportation Authority shall submit the items on the Department of Transportation's Action Agenda;</text> </paragraph> <paragraph num="(c)"> <text>The University System of Maryland shall submit items requiring Board approval pursuant to COMAR 21.01.03.01-1E on a supplement to the Board Secretary's Action Agenda;</text> </paragraph> <paragraph num="(d)"> <text>For those specific projects as may be authorized from time to time by the General Assembly and to the extent so authorized, the Maryland Environmental Service shall submit the items on the Board Secretary’s Action Agenda; and</text> </paragraph> <paragraph num="(e)"> <text>Morgan State University and St. Mary's College of Maryland shall submit the items on the Board Secretary’s Action Agenda.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The procurement agencies shall:</text> <paragraph num="(a)"> <text>Pursuant to COMAR 21.05.06.02, submit, as an appendix to the Board Secretary's Action Agenda for the Board's subsequent review, a separate item for each award of an emergency procurement contract or emergency contract modification that, with prior modifications, aggregates in excess of $50,000. Each procurement agency shall be responsible for defending its own emergency procurements to the Board.</text> </paragraph> <paragraph num="(b)"> <text>Pursuant to COMAR 21.05.06.03, submit each expedited item as an appendix to the appropriate control agency's action agenda whenever a procurement agency requests the Board's approval to make an expedited procurement, and whenever the outcome of a previously approved expedited procurement is being reported.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>The departments also shall submit on the appropriate Action Agenda for the Board's prior review and approval, the award of any procurement contract containing a clause which permits the laws of a jurisdiction other than Maryland to prevail.</text> </paragraph> <paragraph num="(5)"> <text>The Board reserves the right to require that any particular procurement contract be brought before the Board for final disposition on one of the Action Agendas.</text> </paragraph> <paragraph num="(6)"> <text>A department may request that any particular procurement contract be brought before the Board for final disposition on one of the Action Agendas.</text> </paragraph> <paragraph num="(7)"> <text>Except as otherwise provided in COMAR 21.05.06, the award of any procurement contract which must be submitted to the Board for approval pursuant to this chapter may not take effect until it has been approved by the Board.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Procurement Agency Activity Reports (PAAR).</text> <paragraph num="(1)"> <text>The Departments shall prepare and submit to the Board Procurement Agency Activity Reports (PAAR) covering all procurement contracts in excess of $50,000, except contracts for the purchase of commodities and supplies, made pursuant to this chapter during the previous calendar month or not previously reported.</text> </paragraph> <paragraph num="(2)"> <text>In addition, a PAAR shall include a report of:</text> <paragraph num="(a)"> <text>All contract modifications and option renewals greater than $50,000, but less than the amount requiring Board approval, approved by the departments pursuant to this chapter;</text> </paragraph> <paragraph num="(b)"> <text>All cancellations of solicitations or rejections of all bids or proposals approved by the departments pursuant to COMAR 21.06.02; and</text> </paragraph> <paragraph num="(c)"> <text>All construction contract change orders greater than $50,000, but less than the amount requiring Board approval, approved by the Departments of General Services and Transportation and the Maryland Port Commission pursuant to this chapter.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The PAAR of the Department of General Services shall include a summary report of those invoices approved pursuant to this chapter which did not result from competitive bidding.</text> </paragraph> <paragraph num="(4)"> <text>The PAAR shall contain an item for each procurement contract required by this chapter to be reported and shall include at a minimum the following elements:</text> <paragraph num="(a)"> <text>A short abstract of the procurement contract;</text> </paragraph> <paragraph num="(b)"> <text>Name of contracting agency/entity;</text> </paragraph> <paragraph num="(c)"> <text>Date of contract award;</text> </paragraph> <paragraph num="(d)"> <text>Contract number/identifier;</text> </paragraph> <paragraph num="(e)"> <text>Project title (short description);</text> </paragraph> <paragraph num="(f)"> <text>Name, city, and state of contractor;</text> </paragraph> <paragraph num="(g)"> <text>Amount of contract and fund source;</text> </paragraph> <paragraph num="(h)"> <text>Procurement method used (include justification if other than competitive sealed bidding or if preference given); and</text> </paragraph> <paragraph num="(i)"> <text>Number of bids/offers received.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>The PAAR shall be delivered by the Departments directly to the Secretary to the Board of Public Works, not later than the last Wednesday of the month following the reporting period, for inclusion as an item on the next Board Secretary’s Action Agenda.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The provisions of this regulation requiring submission of Action Agendas and PAARS to the Board do not apply to procurements by the Treasurer pursuant to Regulation .04E of this chapter. However, quarterly, the Treasurer shall submit to the Board, on the Board Secretary's Action Agenda, a description of procurements made pursuant to Regulation .04E during the preceding quarter. The description shall include the elements listed in §B(4) of this regulation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Review and Approval of the Award of Certain Procurement Contracts."> <text>Multiyear procurement contracts for services and supplies where the contract term, including the exercise of any option, extends beyond 1 fiscal year are subject to the review and approval procedures required under this chapter and, in addition, the departments shall determine and certify to the Board on the appropriate Action Agenda or PAAR:</text> <paragraph num="A."> <text>That estimated requirements cover the period of the contract and are reasonably firm and continuing; and</text> </paragraph> <paragraph num="B."> <text>That the contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Review of Determinations."> <paragraph num="A."> <text>Procedures for the Board's review of sole source and emergency procurement contracts requiring written determinations are contained in this chapter.</text> </paragraph> <paragraph num="B."> <text>All other written determinations required by this title are subject to review by audit for compliance purposes.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Procedures for Certification of Adequacy of Appropriations and Availability of Funds."> <text>Every contract and any changes or additions to it are subject to prior written approval by the agency head or designee in the using agency and certification by the appropriate fiscal authority as to the adequacy of appropriations and the availability of funds. Certification of the fund source of those contracts which are required to be reviewed and approved by the Board shall appear as an integral part of the corresponding Action Agenda or PAAR items of the submitting State agency.</text> </regulation> <annotations> <annotation type="Authority">: Education Article, §§14-204, 14-205, and 14-405; State Finance and Procurement Article, §§12-101, 12-107, 12-202, 12-203, 12-204, 12-301, 12-302, 13-108, and 15-112; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .03, .04B, C, and .05 amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective August 1, 1986 (13:15 Md. R. 1736)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended and Regulations .04E and .05C adopted effective November 7, 1983 (10:22 Md. R. 1969)</annotation> <annotation type="History" subtype="Administrative History">Regulations .04 and .05B amended as an emergency provision effective June 30, 1982 (9:15 Md. R. 1510); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1983)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1509); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1984)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A amended effective August 24, 1987 (14:17 Md. R. 1872)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B—D amended as an emergency provision effective January 12, 1983 (10:3 Md. R. 207); emergency status extended at 10:8 Md. R. 723; adopted permanently effective April 11, 1983 (10:7 Md. R. 635)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B, C amended effective April 1, 1986 (13:6 Md. R. 684)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended as an emergency provision effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981 (Emergency provisions are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04D amended effective January 14, 1985 (12:1 Md. R. 17)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E amended effective August 1, 1986 (13:15 Md. R. 1736)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05A amended effective May 6, 1985 (12:9 Md. R. 815)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1509); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1984)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective July 20, 1992 (19:14 Md. R. 1286); January 2, 1995 (21:26 Md. R. 2192); October 18, 1999 (26:21 Md. R. 1631); July 27, 2009 (36:15 Md. R. 1167); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective February 24, 1997 (24:4 Md. R. 293); March 8, 1999 (26:5 Md. R. 393); December 27, 1999 (26:26 Md. R. 1959); April 7, 2008 (35:7 Md. R. 751); September 3, 2012 (39:17 Md. R. 1149); April 10, 2017 (44:7 Md. R. 357); June 29, 2020 (47:13 Md. R. 643); May 2, 2022 (49:9 Md. R. 531); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A amended effective July 27, 2009 (36:15 Md. R. 1167)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A, B amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended effective April 11, 2005 (32:7 Md. R. 685)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04D repealed effective October 18, 1999 (26:21 Md. R. 1631)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04F amended effective May 12, 2003 (30:9 Md. R. 615)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04G and H adopted effective July 20, 1992 (19:14 Md. R. 1286)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04G repealed effective January 2, 1995 (21:26 Md. R. 2192)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04H amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04I adopted effective May 9, 1994 (21:9 Md. R. 752)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04I repealed effective March 12, 2007 (34:5 Md. R. 562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04I adopted effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04J adopted effective April 24, 1995 (22:8 Md. R. 598)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04J repealed effective April 11, 2005 (32:7 Md. R. 685)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04J adopted effective July 27, 2009 (36:15 Md. R. 1167)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05A amended effective July 20, 1992 (19:14 Md. R. 1286); April 24, 1995 (22:8 Md. R. 598); February 24, 1997 (24:4 Md. R. 293); October 18, 1999 (26:21 Md. R. 1631); March 12, 2007 (34:5 Md. R. 562); July 27, 2009 (36:15 Md. R. 1167); March 11, 2019 (46:5 Md. R. 310); June 29, 2020 (47:13 Md. R. 643); September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective July 20, 1992 (19:14 Md. R. 1286); April 24, 1995 (22:8 Md. R. 598); February 24, 1997 (24:4 Md. R. 293); March 8, 1999 (26:5 Md. R. 393); March 12, 2007 (34:5 Md. R. 562); April 7, 2008 (35:7 Md. R. 751); April 10, 2017 (44:7 Md. R. 357); March 11, 2019 (46:5 Md. R. 310); July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> <chapter num="02" heading="Maryland State Board of Contract Appeals"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>The Maryland State Board of Contract Appeals was created by Chapter 775, Acts of 1980 to take effect on July 1, 1981 and to replace and expand upon the scope, jurisdiction, and authority of the Transportation Board of Contract Appeals which was established by Chapter 418, Acts of 1978 effective July 1, 1978.</text> </paragraph> <paragraph num="B."> <text>The Appeals Board is an independent agency within the Executive Branch and shall consist of three full-time members qualified to serve in a quasi-judicial capacity and possessing a thorough knowledge of procurement practices and processes. The Chairman and other members are appointed by the Governor with the advice and consent of the State Senate.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Jurisdiction."> <text>The Appeals Board shall have jurisdiction to hear and decide all disputes arising under a contract with any State agency, or as a result of a breach of a contract with any State agency, or as a result of a protest relating to the award of a contract with any State agency, except as provided in COMAR 21.10.02.02. The Appeals Board has no jurisdiction over labor disputes or a contract claim relating to a lease of real property.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Regulations and Procedure."> <text>The administrative procedure and regulations of the Appeals Board appear under Subtitle 10, Administrative and Civil Remedies, of this title.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§15-201—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective January 9, 1989 (15:27 Md. R. 3138); July 23, 2012 (39:14 Md. R. 839)</annotation> </annotations> </chapter> <chapter num="03" heading="Department of Budget and Management" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective May 21, 1984 (11:10 Md. R. 865)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B, C amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1509); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1984)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective February 7, 2000 (27:2 Md. R. 147); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective October 18, 1999 (26:21 Md. R. 1631); March 12, 2007 (34:5 Md. R. 562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended effective October 18, 1999 (26:21 Md. R. 1631); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 adopted as an emergency provision effective July 1, 2005 (32:16 Md. R. 1390); adopted permanently effective October 10, 2005 (32:20 Md. R. 1656)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 repealed effective July 30, 2007 (34:15 Md. R. 1350)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.05 repealed effective June 29, 2020 (47:13 Md. R. 643)</annotation> </annotations> </chapter> <chapter num="04" heading="Department of Transportation"> <regulation prefix="Regulation" num=".01" heading="Duties, Responsibilities, and Authority of the Secretary."> <paragraph num="A."> <text>The Secretary of Transportation shall promulgate, update, and amend internal policy guidelines to supplement the regulations issued pursuant to Division II of the State Finance and Procurement Article.</text> </paragraph> <paragraph num="B."> <text>The Secretary may contract with any person to provide services, including consultant services, for the Department or for any transportation-related purpose (Transportation Article, §2-103(h), Annotated Code of Maryland).</text> </paragraph> <paragraph num="C."> <text>The Secretary may exercise or perform any power or duty that any unit in the Department may exercise or perform (Transportation Article, §2-103(g)), Annotated Code of Maryland.</text> </paragraph> <paragraph num="D."> <text>The Secretary may transfer, assign, and reassign any power or duty from any Administration to the Secretary’s Office or to any other Administration in the Department (Transportation Article, §2-103(f), Annotated Code of Maryland).</text> </paragraph> <paragraph num="E."> <text>The Secretary is Chairman of the Maryland Transportation Authority which, acting on behalf of the Department, has jurisdiction over certain transportation facilities projects (Transportation Article, §§4-201—4-205, Annotated Code of Maryland).</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138); December 25, 2000 (27:25 Md. R. 2284); May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> <chapter num="05" heading="Department of General Services"> <regulation prefix="Regulation" num=".01" heading="Duties, Responsibilities, and Authority."> <paragraph num="A."> <text>The Secretary of General Services shall promulgate, update, and amend internal policy guidelines to supplement the regulations issued pursuant to Division II of the State Finance and Procurement Article, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>The Secretary may contract with any person to provide services, including consultant services, for the Department or for using agencies.</text> </paragraph> <paragraph num="C."> <text>The Secretary may exercise or perform any power or duty that any unit in the Department may exercise or perform.</text> </paragraph> <paragraph num="D."> <text>The Secretary may transfer, assign, and reassign any power or duty from any unit in the Department to the Secretary's office or to any other unit in the Department.</text> </paragraph> <paragraph num="E."> <text>The Secretary, through the Office of State Procurement within the Department, shall publish a Maryland State Procurement Manual that contains procurements standards, guidance, procedures, and best practices for agencies under the procurement authority of the Department. The Maryland State Procurement Manual shall be accessible by any person responsible for conducting procurement on behalf of or under the authority of the Department and the general public.</text> </paragraph> <paragraph num="F."> <text>Specific Powers and Duties.</text> <paragraph num="(1)"> <text>The Secretary has specific powers and duties for:</text> <paragraph num="(a)"> <text>The design and construction of public improvements;</text> </paragraph> <paragraph num="(b)"> <text>Maintenance;</text> </paragraph> <paragraph num="(c)"> <text>The purchasing of supplies (except insurance);</text> </paragraph> <paragraph num="(d)"> <text>Services;</text> </paragraph> <paragraph num="(e)"> <text>Information technology; and</text> </paragraph> <paragraph num="(f)"> <text>The leasing of equipment, vehicles, and real property.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Design, Construction, and Maintenance.</text> <paragraph num="(a)"> <text>In the area of design, construction, and maintenance, pursuant to State Finance and Procurement Article, §§4-406—4-408, Annotated Code of Maryland, except for those projects and properties under the jurisdiction of the Department of Transportation, the Secretary is authorized to establish and supervise a comprehensive maintenance and repair program for all State-operated public improvements and to review and set priorities concerning the maintenance and operation of these improvements. The Department may select consultant architects and engineers to prepare plans and specifications for State construction projects. The Department is authorized to examine and approve these plans and specifications and to inspect and approve the materials, equipment, and work methods used in the course of construction, maintenance, or repair.</text> </paragraph> <paragraph num="(b)"> <text>Duties of the Department include:</text> <paragraph num="(i)"> <text>Assist and advise the Board and other State agencies on all matters of engineering, surveys, plans, specifications, and contracts for public improvements, including the review and approval of any changes;</text> </paragraph> <paragraph num="(ii)"> <text>Collect and maintain records of both construction costs and work progress;</text> </paragraph> <paragraph num="(iii)"> <text>Supervise all appraisals in connection with public improvements;</text> </paragraph> <paragraph num="(iv)"> <text>Maintain a complete and accurate file of drawings and plans of all public improvements; and</text> </paragraph> <paragraph num="(v)"> <text>Represent the Board at the opening of all bids for public improvements, and tabulate, record, and advise the Board of these bids.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(3)"> <text>Procurement of Commodities and Equipment. Concerning the procurement of commodities, pursuant to State Finance and Procurement Article, §4-310—4-315, Annotated Code of Maryland, the Secretary is authorized to award purchase contracts for commodities, and equipment for all State agencies, except for purchases on behalf of the Mass Transit Administration of rolling stock and other property peculiar to the operation of a transit system. The Secretary is empowered to determine standards for materials, supplies, and equipment purchases, except for standards for the purchase of motor vehicles. The Secretary is also empowered to establish procedures that the using agencies shall follow when procuring materials, supplies, and equipment through the Department or when procuring those items under the exempt, delegated, or emergency purchasing authorities identified in these regulations.</text> </paragraph> <paragraph num="(4)"> <text>Leasing.</text> <paragraph num="(a)"> <text>The Secretary is authorized to manage the leasing by the State as lessee of all real property to which the State does not have title. This management function includes:</text> <paragraph num="(i)"> <text>Supervising the selection of locations, negotiating rental rates, and finalizing lease agreements;</text> </paragraph> <paragraph num="(ii)"> <text>Publishing standards and criteria for office space use; and</text> </paragraph> <paragraph num="(iii)"> <text>Assigning leased space.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Exceptions to the Secretary's leasing authority are:</text> <paragraph num="(i)"> <text>Leases entered into by Blind Industries and Services of Maryland as lessee; and</text> </paragraph> <paragraph num="(ii)"> <text>Leases involving the Maryland Department of Transportation requiring improved or unimproved properties for its projects.</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>Track and station leases by the Mass Transit Administration are exempt from certain leasing requirements. Handling of these leases shall comply with procedures contained in the Space Management Manual.</text> </paragraph> <paragraph num="(d)"> <text>The following leases are under the Secretary's leasing authority but are not actually administered by the Department. Handling of these leases shall comply with procedures contained in the Department's Space Management Manual:</text> <paragraph num="(i)"> <text>Certain leases involving concession agreements; and</text> </paragraph> <paragraph num="(ii)"> <text>Leases acquired outside of Maryland.</text> </paragraph> </paragraph> <paragraph num="(e)"> <text>The Secretary may authorize a using agency to lease space on an emergency basis, if requested.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Construction Contracts."> <paragraph num="A."> <text>Office of Facilities Planning, Engineering, and Construction. The Department’s Office of State Procurement is responsible for conducting the procurements for State construction projects. This Office shall prepare or cause to be prepared contract documents, shall advertise and solicit bids as appropriate, and shall manage the contract award process. The Department’s Office of Facilities Planning, Engineering, and Construction shall administer the development and completion of the project.</text> </paragraph> <paragraph num="B."> <text>Obtaining Services. The using agency may initiate a service request by submitting a program describing the work required to the Office of Facilities Planning, Engineering, and Construction. The program shall be submitted in accordance with instructions in the Program Manual. Following the receipt of the program, the Department’s Office of Facilities Planning, Engineering, and Construction shall begin the process to obtain the required public improvements, and shall submit the requisition to the Office of State Procurement.</text> </paragraph> <paragraph num="C."> <text>Using Agency Responsibilities. Before the contract is let, the Department of General Services shall provide a written recommendation for acceptance or rejection of the contract award to the using agency. During construction, an official representative of the using agency shall attend the job initiation, progress, punch-out, and any other meeting convened to expedite or review the development of the project.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Maintenance Contracts."> <paragraph num="A."> <text>Control. The Department is responsible for the control of maintenance contracts and provides direction and assistance to the using agencies in their procurement and development of maintenance contracts.</text> </paragraph> <paragraph num="B."> <text>Delegation of Purchasing Authority to Using Agencies. The Department may establish policies and procedures permitting State agencies to enter into maintenance contracts with a value of less than $200,000, without concurrence of the Department. The procedures are described in the Maryland State Procurement Manual.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Commodity Procurement."> <paragraph num="A."> <text>Delegation of Purchasing Authority to Using Agencies.</text> <paragraph num="(1)"> <text>Department of General Services Selects Exemptions. The Department reserves the right to delegate, either by commodity class or dollar value, certain purchase authority to using agencies. These classes and dollar exemptions are identified in the Maryland State Procurement Manual. Delegated purchases are subject to any review, reporting, or auditing requirements established by the Department. Authority delegated by the Department under this regulation may be rescinded at the Department’s discretion.</text> </paragraph> <paragraph num="(2)"> <text>Using Agency May Request Authority Delegation. A using agency may write the Department and present justification for a procurement which it wishes exempted from the Department’s award authority.</text> </paragraph> <paragraph num="(3)"> <text>Integrity in Application of Exemption Policies. A using agency may not deliberately circumvent a dollar threshold purchase exemption by subdividing a requirement into smaller quantities. This prohibition also applies to purposefully reducing the order quantities and buying more frequently.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Purchases Costing $10,000 or More. The Department may not approve requisitions for commodities which are:</text> <paragraph num="(1)"> <text>The subject of a term requirements or indefinite quantity contract; or</text> </paragraph> <paragraph num="(2)"> <text>Available from another State agency.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Repealed.</text> </paragraph> <paragraph num="D."> <text>Emergency Purchases. The Department shall allow using agencies to make emergency purchases of commodities in accordance with COMAR 21.05.06. Emergency purchases shall be reported as required by COMAR 21.05.06.02D. If a using agency determines that an emergency exists, the agency may contact the Department for assistance before making a purchase.</text> </paragraph> <paragraph num="E."> <text>Receiving and Inspection.</text> <paragraph num="(1)"> <text>Upon delivery of supplies, the using agency shall be responsible for weighing, counting, visually inspecting, and noting any deviations between the items delivered and the purchase order specifications issued by the Department. If a substitute is found, the using agency shall reject it and submit a vendor performance report immediately to the Department. If the need is critical, the appropriate Department buyer shall be notified immediately.</text> </paragraph> <paragraph num="(2)"> <text>Agency receiving personnel shall sign delivery receipts and complete receiving reports for only the quantities received. The receiving personnel shall note any shortages on the delivering carrier's freight bill and shall immediately inform the vendor and the Department of the shortage. Concealed damage or shortages shall also be reported to the vendor as soon as discovered.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Invoice Processing. Each using agency is responsible for promptly processing invoices for payment. The using agency shall match a receiving report and any other supporting documents with appropriate invoices. The using agency shall place all approved invoices on a disbursement transmittal and forward them to the Comptroller's Office for payment.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Leasing Real Property."> <text>Leasing of real property shall be in accordance with the Department's Space Management Manual which identifies the responsibilities of the using agencies and the procedures of the lease acquisition process.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Services."> <paragraph num="A."> <text>The Department is responsible for the control of service contracts and provides direction and assistance to the using agencies in their procurement and development of service contracts pursuant to their delegated authority.</text> </paragraph> <paragraph num="B."> <text>Except as provided in §C of this regulation, this regulation applies to solicitations, contracts, and contract modifications to existing contracts issued by State agencies funded from any source (including nonbudgeted funds and reimbursable funds), which may be used to subsidize, purchase, lease, or otherwise procure contractual services.</text> </paragraph> <paragraph num="C."> <text>The following are exempt from this regulation:</text> <paragraph num="(1)"> <text>Architectural and engineering services contracts of the Departments of General Services and Transportation;</text> </paragraph> <paragraph num="(2)"> <text>Contracts for acquisition and construction of capital improvements, leases, and maintenance services procured through or by the Departments of General Services and Transportation;</text> </paragraph> <paragraph num="(3)"> <text>Contracts for higher education student government self-supporting activities, when the funds being used for the payment were collected from non-State sources, provided that all transmittals and invoices are annotated to certify that all funds being used for the payment were collected from non-State sources;</text> </paragraph> <paragraph num="(4)"> <text>The sale of forest products;</text> </paragraph> <paragraph num="(5)"> <text>Banking, investment, and other financial services contracts authorized by State Finance and Procurement Article, §12-107, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(6)"> <text>Contracts for insurance and insurance-related services obtained pursuant to State Finance and Procurement Article, Title 9 and §12-107, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Unless otherwise specifically provided by statute, other contracts or classes of contracts may be declared in writing exempt in whole or in part from these regulations by the Secretary.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Procurement of State-Owned Motor Vehicles."> <paragraph num="A."> <text>Application.</text> <paragraph num="(1)"> <text>This regulation applies to all mopeds and motor vehicles as defined by Transportation Article, §11-134.1, 11-135, and 11-176, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(2)"> <text>Exempt from this regulation are vehicles assigned to persons with written exceptions from the Secretary.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Acquisition of Vehicles.</text> <paragraph num="(1)"> <text>Standards for purchase shall be determined by the Department of Budget and Management, with the concurrence of the Board. Standards shall be determined for the standard State automobile and such other classes as may be required by the State.</text> </paragraph> <paragraph num="(2)"> <text>Vehicle purchase requests, with specifications, initially shall be submitted to the Secretary of Budget and Management.</text> </paragraph> <paragraph num="(3)"> <text>Actual purchase shall be made by the Department.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Procurement of Rental Vehicles."> <paragraph num="A."> <text>The Secretary of General Services may periodically enter into contracts with automobile rental firms to supply rental vehicles to using agencies.</text> </paragraph> <paragraph num="B."> <text>Using agencies requiring the use of rental vehicles shall acquire them in accordance with the terms and conditions of the State contract or as specified by the Secretary of General Services, or both.</text> </paragraph> <paragraph num="C."> <text>Using agencies requiring the use of rental vehicles not covered by the contracts referenced in §A of this regulation may acquire them using applicable small procurement procedures in accordance with COMAR 21.05.07 with the prior approval of the Secretary of General Services.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Acquisition of Temporary Personnel Services."> <paragraph num="A."> <text>The Secretary of General Services may enter into contracts with contractors providing temporary personnel services to supply certain classes of temporary personnel services.</text> </paragraph> <paragraph num="B."> <text>The Secretary of General Services shall notify all using agencies of the prices at which temporary personnel services may be obtained and the procedure to be followed to obtain these services under the contracts referenced in §A of this regulation.</text> </paragraph> <paragraph num="C."> <text>The Secretary of General Services or designee may permit exceptions to these procedures upon written request and justification.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§4-204, 12-101, 12-107, 12-108, 13-103, 13-104, 13-107, and 13-108(a)(1), Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01E amended effective January 14, 1985 (12:1 Md. R. 17)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B repealed as an emergency provision effective July 1, 1982 (9:15 Md. R. 1509); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; repealed permanently effective October 12, 1982 (9:20 Md. R. 1984)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01E amended effective June 16, 1997 (24:12 Md. R. 865); March 8, 1999 (26:5 Md. R. 393); October 18, 1999 (26:21 Md. R. 1631); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01F amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A, B amended effective June 16, 1997 (24:12 Md. R. 865)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective March 11, 1996 (23:5 Md. R. 384)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C repealed effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective June 16, 1997 (24:12 Md. R. 865); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A amended effective August 23, 2010 (37:17 Md. R. 1186); July 21, 2014 (41:14 Md. R. 799); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C repealed effective September 3, 2012 (39:17 Md. R. 1149)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 repealed effective June 16, 1997 (24:12 Md. R. 865)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> </annotations> </chapter> <chapter num="06" heading="University System of Maryland" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01E amended effective January 14, 1985 (12:1 Md. R. 171)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective March 8, 1999 (26:5 Md. R. 393)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective October 18, 1999 (26:21 Md. R. 1631)</annotation> </annotations> </chapter> <chapter num="07" heading="Comptroller of the Treasury"> <regulation prefix="Regulation" num=".01" heading="Duties, Responsibilities, and Authority."> <paragraph num="A."> <text>The Comptroller shall promulgate, update, and amend internal policy guidelines to supplement the regulations issued pursuant to this title.</text> </paragraph> <paragraph num="B."> <text>When not acting in the capacity as a member of the Board, the Comptroller's principal responsibility under this title is for the prompt and expeditious payment of valid invoices from contracts approved and submitted by State agencies. The Comptroller's General Accounting Division will document and notify in writing the concerned State agency and the appropriate promulgating authorities of this regulation when the agency has delayed payments. A “delayed payment” condition exists when the date of an individual request for payment received by the General Accounting Division is greater than 25 days from the date the proper invoice is received or the date the services, supplies, maintenance, construction, construction-related, architectural, or engineering services are received and accepted, whichever is later. In this event, the individual request will be considered delayed unless the invoice is a disputed invoice under Regulation .02C.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Procedures for Processing Contractors' Invoices."> <text>State agencies shall determine before approval and transmittal of any invoice to the Comptroller, the following:</text> <paragraph num="A."> <text>That the contract has been satisfied pursuant to:</text> <paragraph num="(1)"> <text>Its terms and conditions, particularly the payment and performance schedule and that the contractor is to be properly compensated, if the contract so allows, for any “delayed payment” conditions;</text> </paragraph> <paragraph num="(2)"> <text>This title; and</text> </paragraph> <paragraph num="(3)"> <text>State Finance and Procurement Article, Division II.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Contractors shall indicate their taxpayer identification number on the face of each invoice billed to the State. The taxpayer identification number is the Social Security number for individuals and sole proprietors and the federal employer identification number for all other types of organizations.</text> </paragraph> <paragraph num="C."> <text>That in the event any delay conditions exist due to partial shipments, damaged goods, incomplete services, invoice errors, or disputed invoices, the State agency shall give proper and timely written notification to all concerned parties. A brief description of the reasons for delay shall accompany the invoice when payment is requested from the General Accounting Division in order to avoid being considered a delayed condition. Once approved, the invoices shall be forwarded by the State agency to the General Accounting Division of the Office of the Comptroller for processing and payment in accordance with the instructions contained in the Accounting Procedures Manual for the Use of State Agencies.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Nonpayment and Delayed Payment of Invoices."> <paragraph num="A."> <text>Pursuant to State Finance and Procurement Article, §7-222, Annotated Code of Maryland, the Comptroller may not authorize payment to a contractor who has submitted an invoice if that contractor is indebted to any unit of the State by virtue of unpaid taxes or other obligations owed in an amount of $50 or more.</text> </paragraph> <paragraph num="B."> <text>If taxes or other obligations are owed to the State, payment shall be deferred and the contractor shall be timely notified. Subsequent release of the deferred payment shall be promptly made when the taxes or other obligations are satisfactorily resolved. The taxes or other obligations shall be resolved either by set-off of the amount due the contractor against the amounts due the State or by direct payment.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§7-222, 7-401, and 12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective October 8, 1984 (11:20 Md. R. 1744)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C repealed effective December 25, 2000 (27:25 Md. R. 2284)</annotation> </annotations> </chapter> <chapter num="08" heading="Procurement Improvement Council — Open Meetings"> <regulation prefix="Regulation" num=".01" heading="Public Attendance."> <paragraph num="A."> <text>At any open session of the Procurement Improvement Council, the general public is invited to attend and observe.</text> </paragraph> <paragraph num="B."> <text>Except in instances when the Procurement Improvement Council expressly invites public testimony, questions, comments, or other forms of public participation, or when public participation is otherwise authorized by law, a member of the public attending an open session may not participate in the session.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Disruptive Conduct."> <paragraph num="A."> <text>A person attending an open session of the Procurement Improvement Council may not engage in any conduct, including visual demonstrations such as the waving of placards, signs, or banners, that disrupts the sessions or that interferes with the right of members of the public to attend and observe the session.</text> </paragraph> <paragraph num="B."> <text>The presiding officer may order a person who persists in conduct prohibited by §A of this regulation, or who violates any other regulation concerning the conduct of the open session, to be removed from the session and may request police assistance to restore order.</text> </paragraph> <paragraph num="C."> <text>The presiding officer may recess the session while order is restored.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Recording, Photographing, and Broadcasting of Open Sessions."> <paragraph num="A."> <text>A member of the public, including any representative of the news media, may record discussions of the Procurement Improvement Council at an open session by means of a tape recorder or any other recording device if the device does not create an excessive noise that disturbs members of the Procurement Improvement Council or other persons attending the session.</text> </paragraph> <paragraph num="B."> <text>A member of the public, including any representative of the news media, may photograph or videotape the proceedings of the Procurement Improvement Council at an open session by means of any type of camera if the camera:</text> <paragraph num="(1)"> <text>Is operated without excessively bright artificial light that disturbs members of the Procurement Improvement Council or other persons attending the session; and</text> </paragraph> <paragraph num="(2)"> <text>Does not create an excessive noise that disturbs members of the Procurement Improvement Council or other persons attending the session.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A representative of the news media may broadcast or televise the proceedings of the Procurement Improvement Council at an open session if the equipment used:</text> <paragraph num="(1)"> <text>Is operated without excessively bright artificial light that disturbs members of the Procurement Improvement Council or other persons attending the session; and</text> </paragraph> <paragraph num="(2)"> <text>Does not create an excessive noise that disturbs members of the Procurement Improvement Council or other persons attending the session.</text> </paragraph> </paragraph> <paragraph num="D."> <text>The presiding officer may restrict the movement of a person who is using a recording device, camera, or broadcasting or televising equipment if the restriction is necessary to maintain the orderly conduct of the session.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Recordings Not Part of Record."> <text>A recording of an open session made by a member of the public, or any transcript derived from such a recording, may not be considered a part of the record of any proceeding of the Procurement Improvement Council.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 12-105; State Government Article, §10-507; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: August 16, 1993 (20:16 Md. R. 1279)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> </annotations> </chapter> </subtitle> <subtitle num="03" heading="State Procurement Regulations and Contracts"> <chapter num="01" heading="General Regulations"> <regulation prefix="Regulation" num=".01" heading="Compliance Required."> <paragraph num="A."> <text>A State agency may not enter into a procurement contract except as permitted under State Finance and Procurement Article, Division II, and this title.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Contracts Void for Noncompliance."> <paragraph num="A."> <text>Except as provided in Regulation .03 or elsewhere in this title, if a procurement violates this title, the procurement contract is void.</text> </paragraph> <paragraph num="B."> <text>If a procurement contract is void under this regulation, the contractor shall be awarded compensation for actual expenses reasonably incurred under the contract, plus a reasonable profit if the contractor:</text> <paragraph num="(1)"> <text>Has acted in good faith;</text> </paragraph> <paragraph num="(2)"> <text>Did not directly contribute to a violation of this title; and</text> </paragraph> <paragraph num="(3)"> <text>Had no knowledge of the violation before the procurement contract was awarded.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Contracts Voidable for Noncompliance."> <paragraph num="A."> <text>The Board may determine that a void procurement contract is voidable if the Board determines that:</text> <paragraph num="(1)"> <text>All parties have acted in good faith;</text> </paragraph> <paragraph num="(2)"> <text>Ratification of the procurement contract would not undermine the purposes of this title; and</text> </paragraph> <paragraph num="(3)"> <text>The violation, or series of violations, was insignificant or otherwise did not prevent substantial compliance with this title.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If the Board determines that a procurement contract is voidable under §A and that the contractor has not acted in violation of this title, the procurement agency:</text> <paragraph num="(1)"> <text>May ratify the contract if the procurement agency determines that ratification is in the best interest of the State; or</text> </paragraph> <paragraph num="(2)"> <text>May void the contract and award the contractor compensation for actual expenses reasonably incurred under the contract, plus a reasonable profit.</text> </paragraph> </paragraph> <paragraph num="C."> <text>If the Board determines that a procurement contract is voidable under §A and that the contractor has acted in violation of this title, the procurement agency:</text> <paragraph num="(1)"> <text>May void the contract; or</text> </paragraph> <paragraph num="(2)"> <text>Without prejudice to the State's right to appropriate damages, may ratify the contract if the procurement agency determines that ratification is in the best interests of the State.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Delegation of Authority."> <paragraph num="A."> <text>The Board hereby delegates to each Department head the authority necessary to make initial determinations under Regulations .02 and .03 as to those contracts within the Department's jurisdiction.</text> </paragraph> <paragraph num="B."> <text>A Department head's initial determination and recommendation under §A shall be presented to the Board for final determination.</text> </paragraph> <paragraph num="C."> <text>When the Department is acting as a procurement agency for a contract subject to review under Regulations .02 and .03, the delegation under §A is not affected unless the Board directs otherwise.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Incorporation by Reference of Regulatory Provisions In State Procurement Contracts."> <paragraph num="A."> <text>A State procurement regulation may not change in any way a contractual obligation that was entered into before the effective date of the regulation.</text> </paragraph> <paragraph num="B."> <text>If a law or regulation requires a procurement contract to contain a particular provision, the law or regulation is satisfied if the contract includes notice of the provision, including a description of its subject matter.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 11-204, 11-206, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> </annotations> </chapter> <chapter num="02" heading="Review of Contracts for Form and Legal Sufficiency"> <regulation prefix="Regulation" num=".01" heading="Approval Requirement."> <text>Except as provided in Regulation .02, before entering into a procurement contract the State agency shall submit the contract to an attorney designated by the Attorney General for written approval as to form and legal sufficiency. Failure of the State agency to obtain the required written approval does not affect the rights or remedies of the parties to the contract.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Standard Contract Forms."> <text>If an attorney designated by the Attorney General approves a contract form for form and legal sufficiency, approval of a particular contract may not subsequently be required where the approved contract form is utilized by a State agency without substantive modification or alteration.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="03" heading="Fund Certification"> <regulation prefix="Regulation" num=".01" heading="Certification Requirement."> <text>Every contract, contract modification, change order, or adjustment in contract price is subject to prior written approval by the responsible manager as designated by the using agency and certification by the appropriate fiscal authority as to the availability of funds and to the effect of the modification, change, or adjustment on the project budget or the total construction cost. If the certification discloses a resulting increase in the project budget or total construction cost, the procurement officer may not execute or make the modification, change, or adjustment unless sufficient funds are available, or the scope of the project is adjusted to permit its completion within the project budget.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="04" heading="Determinations"> <regulation prefix="Regulation" num=".01" heading="Requirement."> <text>Each determination required by the State Finance and Procurement Article, Division II, Annotated Code of Maryland, or by this title shall be:</text> <paragraph num="A."> <text>In writing;</text> </paragraph> <paragraph num="B."> <text>Based on written findings of, and signed by, the person who made the determination; and</text> </paragraph> <paragraph num="C."> <text>Retained in the appropriate procurement file for at least 3 years.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Electronic Records."> <text>The requirements of Regulation .01 of this chapter may be satisfied by electronic records and signatures.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§11-207 and 12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 adopted effective October 27, 2003 (30:21 Md. R. 1530)</annotation> </annotations> </chapter> <chapter num="05" heading="Electronic Transactions"> <regulation prefix="Regulation" num=".01" heading="Electronic Procurements Authorized."> <paragraph num="A."> <text>Unless otherwise prohibited by law, a primary procurement unit may conduct procurements by electronic means as provided in the Maryland Uniform Electronic Transactions Act, Commercial Law Article, Title 21, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>Procurement transactions conducted by electronic means may include:</text> <paragraph num="(1)"> <text>Solicitations;</text> </paragraph> <paragraph num="(2)"> <text>Bids or proposals;</text> </paragraph> <paragraph num="(3)"> <text>Evaluations;</text> </paragraph> <paragraph num="(4)"> <text>Awards;</text> </paragraph> <paragraph num="(5)"> <text>Execution;</text> </paragraph> <paragraph num="(6)"> <text>Contract Administration;</text> </paragraph> <paragraph num="(7)"> <text>Protests; and</text> </paragraph> <paragraph num="(8)"> <text>Claims.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Solicitation Requirements."> <paragraph num="A."> <text>Each solicitation and contract shall state whether electronic transactions are permitted or required for that procurement consistent with law and regulation. If the solicitation or contract does not specify that electronic transactions are permitted or required, bidders and offerors may not use electronic means for any part of the procurement except as otherwise provided for in law or regulation, including COMAR 21.10.02.02.</text> </paragraph> <paragraph num="B."> <text>If the electronic means are permitted or required, a solicitation or a contract shall specifically identify:</text> <paragraph num="(1)"> <text>Transactions for which electronic means are authorized;</text> </paragraph> <paragraph num="(2)"> <text>Specific means of conducting each authorized electronic transaction, including:</text> <paragraph num="(a)"> <text>Facsimile;</text> </paragraph> <paragraph num="(b)"> <text>Electronic mail;</text> </paragraph> <paragraph num="(c)"> <text>Specific electronic bidding platforms;</text> </paragraph> <paragraph num="(d)"> <text>Internet;</text> </paragraph> <paragraph num="(e)"> <text>Electronic funds transfer;</text> </paragraph> <paragraph num="(f)"> <text>Electronic data interchange; and</text> </paragraph> <paragraph num="(g)"> <text>Any other electrical, digital, magnetic, wireless, optical, or electromagnetic means of electronically conducting transactions;</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The format for electronic transmission of required information;</text> </paragraph> <paragraph num="(4)"> <text>The information processing systems to be used to conduct the electronic procurement transactions and how to access such systems;</text> </paragraph> <paragraph num="(5)"> <text>The time, place, and manner of receipt of electronic transactions from a bidder, offeror, or contractor; and</text> </paragraph> <paragraph num="(6)"> <text>The fees to be charged, if any, for use of the specified electronic means.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Unauthorized Transactions Prohibited."> <paragraph num="A."> <text>An attempt by a bidder, offeror, or contractor to conduct an electronic procurement transaction may not be considered by the procurement officer unless law, regulation, the solicitation, or contract specifically authorizes the electronic means for the specified transaction.</text> </paragraph> <paragraph num="B."> <text>An attempt by a bidder, offeror, or contractor to conduct a transaction by electronic means, including any acknowledgement, bid, proposal, or claim, does not satisfy the requirements of this title unless the solicitation or contract specifically authorizes the use of electronic means for the specified transaction.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Fees."> <paragraph num="A."> <text>A unit utilizing electronic means to conduct procurement transactions, or a private contractor furnishing electronic means to the State for conducting procurement transactions, may charge a reasonable fee to a bidder or offeror for the use of the electronic means.</text> </paragraph> <paragraph num="B."> <text>A fee may not be charged under §A of this regulation unless it is approved by the Board.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">Commercial Law Article, §§21-101—21-120; State Finance and Procurement Article, §§11-204, 11-206, 12-101, 13-226, and 15-210, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective April 29, 2024 (51:8 Md. R. 369)</annotation> </annotations> </chapter> </subtitle> <subtitle num="04" heading="Specifications"> <chapter num="01" heading="General Policies"> <regulation prefix="Regulation" num=".01" heading="General Definition."> <text>A specification as used in this title means a clear and accurate description of the functional characteristics or the nature of an item to be procured. It may include a statement of any of the procurement agency's requirements and may provide for submission of samples, inspection, or testing of the item before procurement.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="General Purpose."> <paragraph num="A."> <text>A specification is the basis for procuring an item in a cost effective manner. It is the policy of the State that specifications be written so as to permit maximum practicable competition without modifying the State's requirements. Specifications may not be drawn in such a manner as to favor a single vendor over other vendors. When applicable, specifications shall include statements concerning:</text> <paragraph num="(1)"> <text>Low noise level pursuant to State Finance and Procurement Article, §14-403, Annotated Code of Maryland, and COMAR 21.11.07.04;</text> </paragraph> <paragraph num="(2)"> <text>Energy efficiency;</text> </paragraph> <paragraph num="(3)"> <text>Coal in heating systems pursuant to State Finance and Procurement Article, §14-404, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(4)"> <text>Percentage price preference for products made from recycled materials pursuant to State Finance and Procurement Article, §14-405, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(5)"> <text>Preference for mercury-free products and equipment pursuant to State Finance and Procurement Article, §14-406, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Brand Name or Equal. Brand name or equal means a specification that uses one or more manufacturer's names or catalog numbers to describe the standard of quality, performance, and other characteristics needed to meet the procurement agency's requirements, and which provides for the submission of equivalent products. Salient characteristics of the brand name item shall be set forth in the specification.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Responsibility for Preparation."> <text>The using agency is responsible for preparing the specifications. The procuring agency shall require contractor compliance with State Finance and Procurement Article §13-212.1, Annotated Code of Maryland. To the extent practicable, functional or performance criteria shall be emphasized while limiting design or other detailed physical descriptions to those necessary to meet the needs of the State.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Responsibility for Review and Approval."> <text>The procurement officer or the procurement officer's designee shall be responsible for reviewing the specifications for content, clarity, and completeness and to ensure that the specification is nonrestrictive. Final approval of the specifications shall rest with the procurement officer and subsequently with the Department. Specifications may be revised by the procurement officer for purposes of clarification as long as elements of the specifications remain the same. Revisions which change the technical elements of the specification may be made in consultation with the using agency.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-205, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective April 7, 2008 (35:7 Md. R. 751); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> </subtitle> <subtitle num="05" heading="Procurement Methods and Project Delivery Methods"> <chapter num="01" heading="General Provisions"> <regulation prefix="Regulation" num=".01" heading="Methods of Source Selection."> <text>Unless otherwise authorized by law, all State procurement contracts shall be awarded by one of the following methods, at the procurement officer’s discretion, where applicable:</text> <paragraph num="A."> <text>Competitive sealed bidding under COMAR 21.05.02;</text> </paragraph> <paragraph num="B."> <text>Competitive sealed proposals under COMAR 21.05.03 ;</text> </paragraph> <paragraph num="C."> <text>Negotiated award after unsatisfactory competitive sealed bidding;</text> </paragraph> <paragraph num="D."> <text>Noncompetitive negotiations:</text> <paragraph num="(1)"> <text>Sole source under COMAR 21.05.05;</text> </paragraph> <paragraph num="(2)"> <text>Emergency and expedited under COMAR 21.05.06;</text> </paragraph> </paragraph> <paragraph num="E."> <text>Small procurement procedures under COMAR 21.05.07;</text> </paragraph> <paragraph num="F."> <text>Noncompetitive negotiated procurement under COMAR 21.05.12.04;</text> </paragraph> <paragraph num="G."> <text>Intergovernmental cooperative purchasing under COMAR 21.05.09;</text> </paragraph> <paragraph num="H."> <text>Architectural, engineering, and land surveying services qualification based selection under COMAR 21.12;</text> </paragraph> <paragraph num="I."> <text>Master contracting under COMAR 21.05.13;</text> </paragraph> <paragraph num="J."> <text>Auction bids under COMAR 21.05.14; or</text> </paragraph> <paragraph num="K."> <text>Pay-for-success contracting under COMAR 21.05.15.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Preference for Competitive Sealed Bidding — Repealed." /> <regulation prefix="Regulation" num=".03" heading="Suspicion that Collusion Has Occurred."> <paragraph num="A."> <text>If there is a reasonable basis for believing that collusion has occurred among any persons for any reason, the procurement officer shall send a written notice of this belief to the Office of the Attorney General.</text> </paragraph> <paragraph num="B."> <text>All documents involved in any procurement in which there is a reasonable basis for believing that collusion has occurred shall be retained by the procurement agency until the Office of the Attorney General gives notice that they may be destroyed. These documents shall be made available to the Office of the Attorney General immediately on request.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Reciprocal Preferences — Supplies or Services."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="(2)"> <text>“Preference” means:</text> <paragraph num="(a)"> <text>A percentage preference;</text> </paragraph> <paragraph num="(b)"> <text>An employee residency requirement; or</text> </paragraph> <paragraph num="(c)"> <text>Any other law, policy, or practice that favors a resident over a nonresident.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“Resident business” means a business whose principal office or principal base of operations is located in the State.</text> </paragraph> <paragraph num="(4)"> <text>“Services” means services, construction-related services, or energy performance contract services.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Conditions. A procurement agency may give a preference to a resident business if:</text> <paragraph num="(1)"> <text>The resident business is a responsible:</text> <paragraph num="(a)"> <text>Bidder, under a competitive sealed bid;</text> </paragraph> <paragraph num="(b)"> <text>Offeror, under a competitive sealed proposal; or</text> </paragraph> <paragraph num="(c)"> <text>Provider of architectural or engineering services;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A responsible bidder or offeror whose principal office or principal base of operations is in another state submits the lowest responsive bid or the most advantageous offer;</text> </paragraph> <paragraph num="(3)"> <text>The state in which the nonresident's principal office is located or the state in which the nonresident has its principal operation through which it would provide the goods or services gives a preference to its residents through law, policy, or practice; and</text> </paragraph> <paragraph num="(4)"> <text>The preference does not conflict with a federal law or grant affecting the procurement contract.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Application. A preference under this regulation shall be identical to the preference that the other state, through law, policy, or practice, gives to its residents.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04-1" heading="Reciprocal Preferences — Architectural or Engineering Services."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="(2)"> <text>“Nonresident firm” means a business entity that:</text> <paragraph num="(a)"> <text>Has one office that is a principal office for the entity and is not located in the State; or</text> </paragraph> <paragraph num="(b)"> <text>For an entity that has offices in multiple states, has not had a principal office located in the State for at least 6 months immediately before the date of a request for proposals.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“Preference” means:</text> <paragraph num="(a)"> <text>A percentage preference;</text> </paragraph> <paragraph num="(b)"> <text>An employee residency requirement; or</text> </paragraph> <paragraph num="(c)"> <text>Any other law, policy, or practice that favors a resident-firm offeror over a nonresident-firm offeror.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>Principal Office.</text> <paragraph num="(a)"> <text>“Principal office” means a primary place of business that is staffed on a regular basis to provide the services that are requested by a unit in a request for proposals.</text> </paragraph> <paragraph num="(b)"> <text>“Principal office” does not include a satellite office or an office that is minimally staffed and is not open on a regular basis to provide the services that are requested by a unit in a request for proposals.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>“Request for proposals” means a request for architectural services or engineering services that is issued in accordance with State Finance and Procurement Article, §13-112, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(6)"> <text>Resident Firm.</text> <paragraph num="(a)"> <text>“Resident firm” means a business entity that is licensed or otherwise authorized to provide architectural or engineering services in the State, and:</text> <paragraph num="(i)"> <text>For an entity that has one office, the office is located in the State; or</text> </paragraph> <paragraph num="(ii)"> <text>For an entity that has offices in multiple states, has had a principal office located in the State for at least 6 months immediately before the date of a request for proposals.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Resident firm” includes a joint venture that was entered into before the date of the request for proposals for which the joint venture submits a proposal and includes one party that holds at least a 51 percent interest in the joint venture and meets the definition in §A(6)(a) of this regulation.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>Conditions. A procurement agency shall apply a preference to a proposal from a resident firm if:</text> <paragraph num="(1)"> <text>A nonresident firm is a responsible offeror determined to be the most qualified person to submit a proposal in accordance with State Finance and Procurement Article, §13-112, Annotated Code of Maryland, and the state in which the principal office of the nonresident firm is located has a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland;</text> </paragraph> <paragraph num="(2)"> <text>A resident firm is a responsible offeror that certifies it meets the requirements for a resident firm at the same time that it submits the proposal for which the preference would apply; and</text> </paragraph> <paragraph num="(3)"> <text>The nonresident firm’s state’s preference does not conflict with a federal law or grant affecting the procurement contract.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Application.</text> <paragraph num="(1)"> <text>At the request of a unit, a nonresident firm shall provide the following documentation for the state in which the principal office of the nonresident firm is located:</text> <paragraph num="(a)"> <text>A copy of the current statute, resolution, policy, procedure, or executive order that establishes a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland; or</text> </paragraph> <paragraph num="(b)"> <text>A certification that the other state does not have a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If a resident firm qualifies for a preference established under this section and for another preference established under State Finance and Procurement Article, Division II, Annotated Code of Maryland, the unit:</text> <paragraph num="(a)"> <text>May not apply more than one preference to the proposal from the resident firm; and</text> </paragraph> <paragraph num="(b)"> <text>Shall apply the preference to the proposal from the resident firm that is most advantageous to the resident firm.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>If, when making a determination of qualification under a qualification-based selection, a unit determines that a proposal from a resident firm and a proposal from a nonresident firm are equally qualified, the unit may apply a preference to the proposal from the resident firm.</text> </paragraph> <paragraph num="(4)"> <text>A unit may not apply a preference to a proposal submitted by a resident firm if the resident firm does not submit the certification required under §B(2) of this regulation at the same time that it submits the proposal.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Permissible Disclosures."> <text>After a solicitation for bids under COMAR 21.05.02 or for proposals under COMAR 21.05.03 or 21.12.02—21.12.05 is issued and until a procurement officer makes a recommendation for award, a procurement officer may disclose to a person outside the Board of Public Works and the Executive Branch only:</text> <paragraph num="A."> <text>Whether a decision has been made regarding a solicitation; and</text> </paragraph> <paragraph num="B."> <text>Information that is available to the public under the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Record of Solicitation of Inquiries."> <text>After a solicitation for bids under COMAR 21.05.02 or for proposals under COMAR 21.05.03 or 21.12.02—21.12.05 is issued and before contract award, a procurement officer shall record and include in the procurement file the following information from any inquiry originating from any source outside the Executive Branch:</text> <paragraph num="A."> <text>The date and time of the inquiry;</text> </paragraph> <paragraph num="B."> <text>The name and affiliation of the person making, or initiating, the inquiry; and</text> </paragraph> <paragraph num="C."> <text>The substance and nature of the inquiry.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Procurement Record."> <text>The procurement file on each procurement under COMAR 21.05.02 and 21.05.03 or 21.12.02—21.12.05 may be kept electronically and shall include:</text> <paragraph num="A."> <text>A record of all inquiries required to be recorded under Regulation .06 of this chapter;</text> </paragraph> <paragraph num="B."> <text>A listing of every bidder or offeror solicited;</text> </paragraph> <paragraph num="C."> <text>All bids or offers received;</text> </paragraph> <paragraph num="D."> <text>All internal and external correspondence regarding the procurement;</text> </paragraph> <paragraph num="E."> <text>Written documentation from the procurement officer describing efforts to confirm the information in the affidavits submitted by the successful bidder or offeror, including, at a minimum, verification that the business has not been suspended or debarred by the State or federal government; and</text> </paragraph> <paragraph num="F."> <text>The final contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Procurement Bundling."> <paragraph num="A."> <text>In this chapter, “bundle” means the consolidation of two or more procurement requirements for supplies or services previously provided or performed under separate contracts into a single solicitation seeking offers for a single contract that is unlikely to be accessible for award to a small business or minority business enterprise.</text> </paragraph> <paragraph num="B."> <text>For the purpose of precluding or limiting participation by a minority business enterprise or a small business, a unit may not:</text> <paragraph num="(1)"> <text>Bundle a procurement;</text> </paragraph> <paragraph num="(2)"> <text>Limit the number of competitive bidders or offerors; or</text> </paragraph> <paragraph num="(3)"> <text>Limit participation to a predetermined group of bidders or offerors.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Application. This regulation does not apply if a unit bundles a procurement to conduct a small business reserve procurement under COMAR 21.11.01.06.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">: State Finance and Procurement Article, §§11-201, 11-205, 12-101, 13-102, 13-110, 13-202, and 14-401, Annotated Code of Maryland; Ch. 216, Acts of 2009; Chs. 633 and 624, Acts of 2018; Ch. 356, Acts of 2019</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01D amended effective May 6, 1985 (12:9 Md. R. 815)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01F adopted effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective October 5, 1998 (25:20 Md. R. 1533); March 11, 2019 (46:5 Md. R. 310); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01F amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01H amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 repealed effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective February 24, 1997 (24:4 Md. R. 293)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 adopted effective October 12, 1996 (23:20 Md. R. 1425)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective January 24, 2000 (27:1 Md. R. 77); July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04-1 adopted effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulations .05—.07 adopted effective October 2, 2000 (27:19 Md. R. 1729)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 adopted effective January 14, 2010 (37:1 Md. R. 16)</annotation> </annotations> </chapter> <chapter num="02" heading="Procurement by Competitive Sealed Bidding"> <regulation prefix="Regulation" num=".01" heading="Invitation for Bids."> <paragraph num="A."> <text>Use. The invitation for bids is used to initiate a competitive sealed bid procurement.</text> </paragraph> <paragraph num="B."> <text>Content. The invitation for bids shall include the following:</text> <paragraph num="(1)"> <text>Instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of the bids and the address where bids are to be delivered;</text> </paragraph> <paragraph num="(2)"> <text>The purchase description, delivery or performance schedule, and any special instructions necessary; and</text> </paragraph> <paragraph num="(3)"> <text>Whether award shall be made on the basis of the most favorable bid price or the most favorable evaluated bid price, whichever is applicable. If the latter basis is used, the objectively measurable criteria to be used shall be set forth in the invitation for bids;</text> </paragraph> <paragraph num="(4)"> <text>The mandatory solicitation requirements set forth in COMAR 21.05.08; and</text> </paragraph> <paragraph num="(5)"> <text>A summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Acknowledgement of Amendments. The invitation for bids shall require the acknowledgement of the receipt of all amendments, addenda, and changes issued.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Bidding Time."> <text>Bidding time is the period of time between the date of publication of the invitation for bids and the time and date set for receipt of bids. The bidding time shall be a minimum of 20 days.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Bidder Submissions."> <paragraph num="A."> <text>Bid Form. A form shall be provided on which the bidder shall state the price, sign and submit along with all other necessary submissions.</text> </paragraph> <paragraph num="B."> <text>Bid Content.</text> <paragraph num="(1)"> <text>Bids shall be based upon the specifications contained in the invitation for bids.</text> </paragraph> <paragraph num="(2)"> <text>Bids shall be typewritten or written legibly in ink.</text> </paragraph> <paragraph num="(3)"> <text>All erasures or alterations shall be initialed by the signer in ink.</text> </paragraph> <paragraph num="(4)"> <text>All bids shall be signed in ink.</text> </paragraph> <paragraph num="(5)"> <text>The bid shall be submitted in an envelope which clearly indicates that it contains a bid.</text> </paragraph> <paragraph num="(6)"> <text>If specifically permitted by the invitation for bids, electronic records and signatures satisfy the requirement for written bids and signatures, as provided in the Maryland Uniform Electronic Transactions Act, Commercial Law Article, Title 21, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Oral Bids. Oral bids may be accepted only if oral bids are solicited. All oral bids shall be followed immediately by a written confirmation detailing the information required in the solicitation.</text> </paragraph> <paragraph num="D."> <text>Electronic Bids. The invitation for bids may permit or require bids to be submitted by electronic means. If bids by electronic means are permitted or required, the invitation for bids shall specify the:</text> <paragraph num="(1)"> <text>Types of electronic transmission permitted;</text> </paragraph> <paragraph num="(2)"> <text>Formats required;</text> </paragraph> <paragraph num="(3)"> <text>Information processing systems to be used and how to access the systems; and</text> </paragraph> <paragraph num="(4)"> <text>Time, place, and manner of receipt of electronic bids.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Bid Samples and Descriptive Literature. Invitation to bids shall state when the bidder is required to furnish samples or descriptive literature.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Public Notice."> <paragraph num="A."> <text>Distribution. Invitations for bids or notices of the availability of invitations for bids shall be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notices of availability shall indicate where, when, and for how long invitations for bids may be obtained, generally describe the supply, service, or construction desired, and may contain other appropriate information. A fee or deposit may be charged for the invitation for bids documents.</text> </paragraph> <paragraph num="B."> <text>Publication. Notice of an invitation for bids for which the bid amount is reasonably expected to exceed $50,000 shall be published in eMaryland Marketplace unless the resulting contract is reasonably expected to be performed entirely outside this State or the District of Columbia. Publication shall be at least 20 days before the bid submission date. Publication of notice less than 20 days before bid submission is defective unless notice of the project is not required by State law.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Prequalification of Bidders — Repealed." /> <regulation prefix="Regulation" num=".06" heading="Vendor Lists."> <text>Vendor lists may be compiled by the procurement agency to provide State agencies with the names of businesses that may be interested in competing for various types of State procurement contracts. A Master Vendor list shall be compiled by the Department of General Services as part of the eMaryland Marketplace. Unless otherwise provided, inclusion or exclusion of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise is capable of successfully performing a State contract. Any person desiring to do business with the State shall register with eMaryland Marketplace using the appropriate services and commodities codes indicating the types or kinds of State procurements for which the vendor wishes to be considered. Out-of-State vendors shall be registered with the Maryland Department of Assessments and Taxation before award of the contract.</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Pre-Bid Conferences."> <paragraph num="A."> <text>Pre-bid conferences may be conducted by the procurement officer or designee to explain the procurement requirements.</text> </paragraph> <paragraph num="B."> <text>If a pre-bid conference is held, it shall be announced to all prospective bidders who were sent an invitation for bids or who are known by the procurement officer to have obtained the bidding documents.</text> </paragraph> <paragraph num="C."> <text>Any pre-bid conference should be held long enough after the invitation for bids has been issued to allow prospective bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the pre-bid conference results in the preparation of bids.</text> </paragraph> <paragraph num="D."> <text>Attendance at a pre-bid conference may be encouraged, but may not be made mandatory except to the extent required under COMAR 21.11.03.09C(2)(e). Nothing stated at the pre-bid conference may change the invitation for bids unless a change is made by the procurement officer by written amendment.</text> </paragraph> <paragraph num="E."> <text>Pre-Bid Conference Records.</text> <paragraph num="(1)"> <text>When a pre-bid conference is held in connection with a procurement that is expected to exceed $100,000, the procurement officer shall ensure that a written record of the conference is prepared as soon as practicable and that the record is sent to all prospective bidders who were sent an invitation for bids or who are known by the procurement officer to have obtained the solicitation.</text> </paragraph> <paragraph num="(2)"> <text>When a pre-bid conference is held and a conference summary is made, the procurement officer shall ensure that the summary is sent to all prospective bidders who were sent an invitation for bids or who are known by the procurement officer to have obtained the solicitation.</text> </paragraph> <paragraph num="(3)"> <text>The record or summary of a pre-bid conference is a public record that is open to public inspection during ordinary business hours.</text> </paragraph> <paragraph num="(4)"> <text>Electronic records and transmissions of a pre-bid conference satisfy the requirements of this regulation.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Electronic Pre-Bid Conferences.</text> <paragraph num="(1)"> <text>Electronic pre-bid conferences may be conducted if specifically permitted or required in the solicitation.</text> </paragraph> <paragraph num="(2)"> <text>An electronic pre-bid conference shall permit interactive communication between all prospective bidders or offerors and the procurement officer.</text> </paragraph> <paragraph num="(3)"> <text>If pre-bid conferences are conducted by electronic means, prospective bidders or offerors shall be notified of the:</text> <paragraph num="(a)"> <text>Date and time set for the electronic pre-bid conference; and</text> </paragraph> <paragraph num="(b)"> <text>Manner and duration of the interactive session.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Amendments to Invitations for Bids."> <paragraph num="A."> <text>Form. Each amendment to an invitation for bids shall be identified as such and shall require that the bidder acknowledge its receipt. The amendment shall reference the portion of the invitation for bids it amends. The procurement officer shall authorize the issuance of an amendment.</text> </paragraph> <paragraph num="B."> <text>Distribution. Amendments shall be sent to all prospective bidders who were sent an invitation for bids or who are known to the procurement officer to have obtained the bidding documents.</text> </paragraph> <paragraph num="C."> <text>Timeliness. Amendments shall be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date for receipt of bids does not permit preparation, the time shall be increased to the extent possible in the amendment or, if necessary, by electronic communication or telephone and confirmed in the amendment.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Pre-Opening Modification or Withdrawal of Bids."> <paragraph num="A."> <text>Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the invitation for bids before the time and date set for bid opening. If expressly permitted in the invitation for bids, notification of bid modification or withdrawal may be made by electronic means only in the manner specified in the invitation for bids.</text> </paragraph> <paragraph num="B."> <text>Disposition of Bid Security. If a bid is withdrawn in accordance with this regulation, the bid security, if any, shall be returned to the bidder.</text> </paragraph> <paragraph num="C."> <text>Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Late Bids, Late Withdrawals, and Late Modifications."> <paragraph num="A."> <text>Policy. Any bid received at the place designated in the solicitation after the time and date set for receipt of bids is late. Any request for withdrawal or request for modification received at the place designated in the solicitation after the time and date set for receipt of bids is late.</text> </paragraph> <paragraph num="B."> <text>Treatment. A late bid, late request for modification, or late request for withdrawal may not be considered. Upon the written approval of the Office of the Attorney General, exceptions may be made when a late bid, withdrawal, or modification is received before contract award, and the bid, modification, or withdrawal would have been timely but for the action or inaction of State personnel directing the procurement activity or their employees. A late modification of a successful bid that makes its terms more favorable to the State shall be considered at any time it is received and may be accepted upon the written approval of the Office of the Attorney General.</text> </paragraph> <paragraph num="C."> <text>Records. A record shall be made of each request for late bid acceptance, modification, or withdrawal which shall be retained in the appropriate procurement file.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Receipt, Opening, and Posting of Bids."> <paragraph num="A."> <text>Receipt. Upon receipt of a paper bid or bid modification, each bid and modification shall be stored in a secure place until the time and date set for bid opening. For online bid submission through the eMaryland Marketplace, the system security configuration shall not allow bids to be opened prior to the time and date established in the solicitation. Before bid opening the State may not disclose the identity of any bidder.</text> </paragraph> <paragraph num="B."> <text>Opening and Posting. Bids and modifications shall be opened publicly, at the time, date, and place designated in the invitation for bids. The name of each bidder, the bid price, and such other information as is deemed appropriate shall be read aloud or otherwise made available. The bids shall be tabulated or a bid abstract made. The opened bid shall be available for public inspection at a reasonable time after bid opening but in any case before contract award except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in this title. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. Prices, makes, and model or catalog numbers of the items offered, deliveries, and terms of payment shall be publicly available at a reasonable time after bid opening but in any event before contract award regardless of any designation to the contrary at the time of bid opening.</text> </paragraph> <paragraph num="C."> <text>Confidential Data. The procurement officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. Nondisclosure is permissible only if approved by the Office of the Attorney General.</text> </paragraph> <paragraph num="D."> <text>Electronic receipt, bid opening, and posting of the information required under §B of this regulation shall satisfy the requirements of this section.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".12" heading="Mistakes in Bids."> <paragraph num="A."> <text>General. Technicalities or minor irregularities in bids, as defined in COMAR 21.06.02.04, may be waived if the procurement officer determines that it shall be in the State's best interest. The procurement officer may either give a bidder an opportunity to cure any deficiency resulting from a technicality or minor irregularity in its bid, or waive the deficiency if it is to the State's advantage to do so.</text> </paragraph> <paragraph num="B."> <text>Mistakes Discovered Before Opening. A bidder may correct mistakes discovered before the time and date set for bid opening by withdrawing or correcting the bid as provided in Regulation .09.</text> </paragraph> <paragraph num="C."> <text>Confirmation of Bid. If the procurement officer knows or has reason to conclude that a mistake has been made, the bidder may be requested to confirm the bid. Situations in which confirmation should be requested include obvious, apparent errors on the face of the bid or a bid unreasonably lower than the other bids submitted. If the bidder alleges mistake, the bid may be corrected or withdrawn upon the written approval of the Office of the Attorney General if any of the following conditions are met:</text> <paragraph num="(1)"> <text>If the mistake and the intended correction are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.</text> </paragraph> <paragraph num="(2)"> <text>A bidder may be permitted to withdraw a low bid if:</text> <paragraph num="(a)"> <text>A mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or</text> </paragraph> <paragraph num="(b)"> <text>The bidder submits proof of evidential value which clearly and convincingly demonstrates that a mistake was made.</text> </paragraph> </paragraph> </paragraph> <paragraph num="D."> <text>Mistakes Discovered After Award. Mistakes may not be corrected after award of the contract except when the procurement officer and the head of a procurement agency make a determination that it would be unconscionable not to allow the mistake to be corrected. Changes in price are not permitted. Corrections shall be submitted to and approved in writing by the Office of the Attorney General.</text> </paragraph> <paragraph num="E."> <text>Determinations Required. When a bid is corrected or withdrawn, or correction or withdrawal is denied, the procurement officer shall prepare a determination showing that the relief was granted or denied in accordance with these regulations.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".13" heading="Bid Evaluation and Award."> <paragraph num="A."> <text>General. The contract is to be awarded to the responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation for bids, and is either the most favorable bid price or most favorable evaluated bid price. A bid may not be evaluated for any requirement or criterion that is not disclosed in the invitation for bids.</text> </paragraph> <paragraph num="B."> <text>Determination of Most Favorable Bid. Bids shall be evaluated to determine which bidder offers the most favorable price to the State in accordance with the evaluation criteria set forth in the invitation for bids. Only objectively measurable criteria which are set forth in the invitation for bids shall be applied in determining the most favorable evaluated bid price. The State reserves the right to make the award by item, or groups of items, or total bid if it is in the best interest of the State to do so unless the bidder specifies in its bid that a partial or progressive award is not acceptable.</text> </paragraph> <paragraph num="C."> <text>Restrictions. Nothing in this regulation shall be deemed to permit a contract award to a bidder submitting a higher quality item than that designated in the invitation for bids if that bid is not also the most favorable bid. Further, this regulation does not permit negotiations with any bidder.</text> </paragraph> <paragraph num="D."> <text>Award. Upon determination of the most favorable bid, review of the bid for responsiveness, and satisfaction that the bidder is responsible, the procurement officer shall, after obtaining all required approvals, award the contract to that bidder.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".14" heading="Tie Bids."> <paragraph num="A."> <text>Definition. Tie bids are responsive bids from responsible bidders that are identical in price, terms, and conditions and which meet all the requirements and evaluation criteria set forth in the invitation for bids.</text> </paragraph> <paragraph num="B."> <text>Award. The award shall be made to the in-State business if identical favorable bids are received from an in-State and out-of-State bidder. In order for a procurement agency to achieve its overall minority participation goal a contract may be awarded as follows pursuant to COMAR 21.11.03.10A(1):</text> <paragraph num="(1)"> <text>If identical favorable bids are received from an in-State certified minority business enterprise and an in-State non-minority business enterprise, or an out-of-State certified minority business enterprise and an out-of-State non-minority business enterprise, the award may be made to the certified minority business enterprise.</text> </paragraph> <paragraph num="(2)"> <text>If identical favorable bids are received from tying in-State or out-of-State certified minority business enterprises, the award may be made to the certified minority business enterprise having the greatest amount of certified minority business enterprise participation in the particular contract as determined after obtaining the information required under COMAR 21.11.03.10B.</text> </paragraph> <paragraph num="(3)"> <text>If identical favorable bids are received from tying in-State or out-of-State non-minority business enterprises, the award may be made to the non-minority business enterprise having the greatest amount of minority participation in the contract, including staff, or certified minority business enterprise subcontract participation in the contract as determined after obtaining the information required under COMAR 21.11.03.10B.</text> </paragraph> <paragraph num="(4)"> <text>If identical favorable bids are received from in-State bidders or from out-of-State bidders, and no rules for implementing a procedure for resolving a tie bid apply, a drawing shall be conducted. A witness shall be present to verify the drawing and shall certify the results on the bid tabulation sheet.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Record. Records shall be made of all invitations for bids on which tie bids are received and a copy shall be forwarded to the Office of the Attorney General.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".15" heading="Documentation of Award."> <text>Following an award, a record showing the basis for determining the successful bidder shall be made a part of the procurement file.</text> </regulation> <regulation prefix="Regulation" num=".16" heading="Publicizing Awards."> <text>Written notice of award shall be sent to the successful bidder. Notice of award shall be made available to the public. Notices of award of all contracts pursuant to this chapter shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the execution and approval of the contract.</text> </regulation> <regulation prefix="Regulation" num=".17" heading="Multi-Step Sealed Bidding."> <paragraph num="A."> <text>Definition. “Multi-step sealed bidding” means a two-phase process in which bidders submit unpriced technical offers or samples, or both, to be reviewed by the State and a second phase in which those bidders whose technical offers or samples, or both, have been found to be acceptable during the first phase have their price bids considered.</text> </paragraph> <paragraph num="B."> <text>Conditions for Use. Multi-step sealed bidding may be used when it is determined by the procurement officer that it is impracticable to initially prepare specifications to support an award based solely on bid price.</text> </paragraph> <paragraph num="C."> <text>Evaluation.</text> <paragraph num="(1)"> <text>Once the technical offer or samples, or both, have been found to be acceptable, price bids from only those vendors whose technical offers or samples, or both, have been found acceptable shall be considered and evaluated in accordance with this chapter.</text> </paragraph> <paragraph num="(2)"> <text>Price bids may be solicited at the same time as technical offers, in separate sealed envelopes, or after review of technical offers, only from those whose technical offers have been found acceptable.</text> </paragraph> <paragraph num="(3)"> <text>Price information may not be opened until the technical review is complete. Price information from vendors whose technical offers have been found unacceptable shall be returned unopened.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".18" heading="Disposition of Bids."> <text>When bids are rejected, or a solicitation cancelled after bids are received, the bids which have been opened shall be retained in the procurement file, or if unopened, returned to the bidders upon request and the file so documented.</text> </regulation> <regulation prefix="Regulation" num=".19" heading="Time for Bid Acceptance."> <paragraph num="A."> <text>Unless otherwise provided in the invitation for bids, bid prices are irrevocable for a period of 90 days following bid opening.</text> </paragraph> <paragraph num="B."> <text>After opening bids, the procurement officer may request bidders to extend the time during which the State may accept their bids, provided that, with regard to bids, no other change is permitted.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".20" heading="Only One Bid."> <text>If only one responsive bid from a responsible bidder is received in response to an invitation for bids (including multi-step bidding), and the procurement officer determines that other prospective bidders had reasonable opportunity to respond, an award under COMAR 21.05.05 may be made to that bidder.</text> </regulation> <regulation prefix="Regulation" num=".21" heading="Multiple or Alternate Bids."> <text>Unless multiple or alternate bids are requested in the solicitation, these bids may not be accepted. However, if a bidder clearly indicates a base bid, it shall be considered for award as though it were the only bid submitted by the bidder. The provisions of this regulation shall be set forth in the solicitation and, if multiple or alternate bids are allowed, it shall specify their treatments.</text> </regulation> <regulation prefix="Regulation" num=".22" heading="Conditioning Bids Upon Other Awards Not Acceptable."> <text>Any bid which is conditioned upon receiving award of both the particular contract being solicited and another State contract shall be deemed nonresponsive and may not be accepted.</text> </regulation> <regulation prefix="Regulation" num=".23" heading="Unsolicited Proposals — Repealed" /> <regulation prefix="Regulation" num=".24" heading="Novation or Change of Name."> <paragraph num="A."> <text>No Assignment. A State contract is not transferrable, or otherwise assignable, without the written consent of the procurement officer provided, however, that a contractor may assign monies receivable under a contract after due notice to the State.</text> </paragraph> <paragraph num="B."> <text>Recognition of a Successor in Interest Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that:</text> <paragraph num="(1)"> <text>The transferee assumes all of the transferor's obligations;</text> </paragraph> <paragraph num="(2)"> <text>The transferor waives all rights under the contract as against the State; and</text> </paragraph> <paragraph num="(3)"> <text>Unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Change of Name. When a contractor requests to change the name in which it holds a contract with the State, the procurement officer responsible for the contract shall, upon receipt of a document indicating the change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting contractor to effect the change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are changed.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">: State Finance and Procurement Article, §§12-101, 13-103, 13-210, and 14-301—14-308, Annotated Code of Maryland; Chs. 586 and 587, Acts of 2017</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .02 and .04B amended as an emergency provision effective November 6, 1987 (14:24 Md. R. 2553); emergency status extended at 15:5 Md. R. 615, 15:11 Md. R. 1328, 15:18 Md. R. 2144, and 15:24 Md. R. 2766 (Emergency provisions are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Annotation: COMAR 21.05.02.12D cited in Maryland Port Administration v. John W. Brawner Contracting Co., 303 Md. 44 (1985)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective February 24, 1997 (24:4 Md. R. 294)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective February 24, 1997 (24:4 Md. R. 294)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 repealed effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective April 7, 1997 (24:7 Md. R. 554)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07E amended and F adopted effective October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08C amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09A amended effective October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14B amended effective December 25, 2023 (50:25 Md. R. 1090)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 amended effective November 7, 2005 (32:22 Md. R. 1759)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17A, C amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17B amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .23 amended effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .23 repealed effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .23E adopted effective November 7, 2005 (32:22 Md. R. 1759)</annotation> <annotation type="History" subtype="Administrative History">Regulation .23E amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="03" heading="Procurement by Competitive Sealed Proposals"> <regulation prefix="Regulation" num=".01" heading="Preference."> <text>Procurement by competitive sealed proposals is the preferred method for:</text> <paragraph num="A."> <text>The procurement of human, social, cultural or educational services;</text> </paragraph> <paragraph num="B."> <text>Real property leases; and</text> </paragraph> <paragraph num="C."> <text>Security services with an expected value that is greater than $1,000,000.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Solicitation of Proposals."> <paragraph num="A."> <text>Content of the Request for Proposals. The request for proposals shall include:</text> <paragraph num="(1)"> <text>Information concerning proposal submission requirements, including the date, time, and place for the receipt of proposals.</text> </paragraph> <paragraph num="(2)"> <text>The evaluation factors and an indication of the relative importance of each evaluation factor, including price.</text> </paragraph> <paragraph num="(3)"> <text>A work statement or scope of services statement, performance schedule, and any special instructions.</text> </paragraph> <paragraph num="(4)"> <text>A statement that discussions may be conducted with those responsible offerors that submit proposals initially judged by the procurement officer to be reasonably susceptible of being selected for award. However, if the request for proposals so notifies all offerors, discussions need not be conducted:</text> <paragraph num="(a)"> <text>With respect to prices that are fixed by law or regulation, except that consideration shall be given to competitive terms and conditions;</text> </paragraph> <paragraph num="(b)"> <text>If time of delivery or performance does not permit discussions; or</text> </paragraph> <paragraph num="(c)"> <text>If it can be demonstrated clearly from the existence of adequate competition or accurate prior cost experience with the particular item, that acceptance of an initial offer without negotiation would result in a fair and reasonable price.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>A statement of when and how price proposals should be submitted.</text> </paragraph> <paragraph num="(6)"> <text>A statement that price proposals are irrevocable for 90 days following the closing date for submission of price proposals or best and final offers, if requested. However, a procurement officer may reduce or increase the period if the procurement officer determines it to be in the State’s best interest provided that the period is reasonable and is clearly stated in the request for proposals.</text> </paragraph> <paragraph num="(7)"> <text>A statement whether multiple or alternate proposals may be submitted and their treatments.</text> </paragraph> <paragraph num="(8)"> <text>The mandatory solicitation requirements set forth in COMAR 21.05.08.</text> </paragraph> <paragraph num="(9)"> <text>All required contract terms and conditions.</text> </paragraph> <paragraph num="(10)"> <text>A requirement that the receipt of any amendments to the request for proposals be acknowledged by offerors known by the procurement officer to have been issued, or otherwise to have received, the request for proposals.</text> </paragraph> <paragraph num="(11)"> <text>A summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Public Notice. Public notice shall be given in the same manner provided for invitation for bids under COMAR 21.05.02.04.</text> </paragraph> <paragraph num="C."> <text>Proposal Preparation Time. The time for preparing proposals shall be in accordance with COMAR 21.05.02.02.</text> </paragraph> <paragraph num="D."> <text>Pre-Proposal Conference. Pre-proposal conferences may be held in accordance with COMAR 21.05.02.07.</text> </paragraph> <paragraph num="E."> <text>Amendments to Requests for Proposals. Amendments to requests for proposals shall be made in accordance with COMAR 21.05.02.08.</text> </paragraph> <paragraph num="F."> <text>Late Proposals, Withdrawals, and Modifications. Any 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 COMAR 21.05.02.10.</text> </paragraph> <paragraph num="G."> <text>Receipt of Proposals.</text> <paragraph num="(1)"> <text>Proposals and modifications shall either be held in a secure place if paper submission or remain locked via the eMaryland Marketplace per approved security configurations until the established due date. Proposals shall not be opened publicly but, in the event a paper submission is received, shall be opened in the presence of at least two State employees.</text> </paragraph> <paragraph num="(2)"> <text>The identity of an offeror and the register of proposals may not be disclosed before the procurement officer makes a determination recommending the award of the contract pursuant to Regulation .03F of this chapter. After contract award, proposals shall be open to public inspection subject to the provisions of the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Evaluation of Proposals, Negotiations and Award."> <paragraph num="A."> <text>Evaluation.</text> <paragraph num="(1)"> <text>The evaluation shall be based on the evaluation factors set forth in the request for proposals and developed from both the work statement and price.</text> </paragraph> <paragraph num="(2)"> <text>Technical proposals and price proposals shall be evaluated independently of each other.</text> </paragraph> <paragraph num="(3)"> <text>Economic Benefits Evaluation Factor.</text> <paragraph num="(a)"> <text>This subsection applies only to proposals that the procurement officer reasonably expects to exceed $50,000. When a point system is used in the evaluation of these proposals, up to 10 percent of the total allocable technical points may be awarded under an economic-benefits evaluation factor. If a point system is not used, an economic-benefits evaluation factor may be included in the technical evaluation factors and be ranked in its relative order of importance, as the procurement officer determines.</text> </paragraph> <paragraph num="(b)"> <text>Offerors may be asked to demonstrate in their proposals how the contract will benefit the Maryland economy. The economic-benefits evaluation factor may include consideration of such elements as:</text> <paragraph num="(i)"> <text>The offeror's intended procurements from Maryland subcontractors, suppliers, and joint venture partners;</text> </paragraph> <paragraph num="(ii)"> <text>The number of jobs generated for Maryland residents;</text> </paragraph> <paragraph num="(iii)"> <text>Tax revenues generated to Maryland and its political subdivisions;</text> </paragraph> <paragraph num="(iv)"> <text>The amount or percentage of subcontract dollars placed with Maryland small businesses and Maryland MBEs.</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>Offerors may receive up to half of the total allocable technical points under an economic-benefits evaluation factor for other elements directly or indirectly attributable to the contract that contribute to the Maryland economy.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>Numerical rating systems may be used but are not required.</text> </paragraph> <paragraph num="(5)"> <text>Factors not specified in the request for proposals may not be considered.</text> </paragraph> <paragraph num="(6)"> <text>Initial evaluations may be conducted and recommendation for award made by an evaluation committee. Final evaluations, including evaluation of the recommendation of the evaluation committee, if any, shall be performed by the procurement officer and the agency head or designee.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Classification of Proposals.</text> <paragraph num="(1)"> <text>When more than one proposal has been received for a particular procurement, the procurement officer may initially classify the proposals as:</text> <paragraph num="(a)"> <text>Reasonably susceptible of being selected for award; or</text> </paragraph> <paragraph num="(b)"> <text>Not reasonably susceptible of being selected for award.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Offerors judged by the procurement officer not to be responsible or offerors whose proposals are classified as not reasonably susceptible of being selected for award shall be so notified.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Discussions.</text> <paragraph num="(1)"> <text>The term “qualified offerors” includes only those responsible offerors that submitted proposals initially classified by the procurement officer as reasonably susceptible of being selected for award. The term does not include those offerors that submitted proposals not reasonably susceptible of being selected for award or that are not deemed responsible.</text> </paragraph> <paragraph num="(2)"> <text>Purposes of Discussions. Discussions are held to:</text> <paragraph num="(a)"> <text>Assure full understanding of the procurement agency's requirements and of the qualified offerors proposals and abilities to perform;</text> </paragraph> <paragraph num="(b)"> <text>Obtain the best price for the State; and</text> </paragraph> <paragraph num="(c)"> <text>Facilitate arrival at a contract that shall be most advantageous to the State, taking into consideration price and other relevant evaluation factors set forth in the request for proposals.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Conduct of Discussions.</text> <paragraph num="(a)"> <text>General. Qualified offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions, negotiations, and clarification of proposals. The procurement officer shall establish procedures and schedules for conducting discussions. If discussions indicate a need for substantive clarification of or change in the request for proposals, the procurement officer shall amend the request to incorporate the clarification or change. Except as provided in §C(3)(b)(ii), below, disclosure to a competing offeror of any information derived from a proposal of, or from discussions with, another offeror is prohibited. Any oral clarifications of substance of a proposal shall be confirmed in writing by the offeror.</text> </paragraph> <paragraph num="(b)"> <text>Real Property Leases. In the procurement of real property leases:</text> <paragraph num="(i)"> <text>The procurement officer may limit discussions and negotiations to only those responsible offerors that submitted the three best proposals based upon the procurement officer's preliminary review, in accordance with the evaluation factors, of all proposals received in response to the request for proposals;</text> </paragraph> <paragraph num="(ii)"> <text>Discussions and negotiations may not result in the disclosure of any information derived from competing offerors except price and information related directly to price;</text> </paragraph> <paragraph num="(iii)"> <text>The procurement officer may establish a maximum fair market rental rate for each premises offered and, after price negotiation, may reject as unacceptable any proposal that exceeds the established maximum fair market rental rate; and</text> </paragraph> <paragraph num="(iv)"> <text>If no offers are received in response to the request for proposals, the procurement officer, with the approval of the agency head or designee, may solicit offers directly without republication of notice pursuant to Regulation .02B.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="D."> <text>Best and Final Offers.</text> <paragraph num="(1)"> <text>General. When in the best interest of the State, the procurement officer may permit qualified offerors to revise their initial proposals by submitting best and final offers. The procurement officer shall establish a common date and time for the submission of best and final offers. The procurement officer may require more than one series of submissions of best and final offers and discussions if the agency head or designee makes a written determination that it is in the State's best interest to conduct additional discussions or change the procurement agency's requirements and require another submission of best and final offers. Otherwise, discussion of or changes in the best and final offers is not allowed before award except as provided in §D(2)(a), below. 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.</text> </paragraph> <paragraph num="(2)"> <text>Real Property Leases. In the procurement of real property leases:</text> <paragraph num="(a)"> <text>After best and final offers are evaluated and the apparently successful offeror determined, the procurement officer may conduct further discussions and negotiations with that offeror to permit the State to obtain the best lease terms, including price, conditions, and services, subject to the requirement that any modification of the apparently successful offer be in the best interest of the State; and</text> </paragraph> <paragraph num="(b)"> <text>If negotiations and best and final offers fail to result in lease terms comparable to market rental rates in the area in which the lease is required and if the apparently successful offeror refuses to accept a lease with terms comparable to the market rental rates as determined by the procurement officer, the procurement officer may solicit additional offers directly without republication of notice pursuant to Regulation .02B.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Existing real property leases may be renewed in accordance with COMAR 21.05.05.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Confirmation of Proposal. When, before an award has been made, it appears from a review of a proposal that a mistake has been made, the offeror should be asked to confirm the proposal. If the offeror alleges a mistake, the procedures in COMAR 21.05.02.12 are to be followed.</text> </paragraph> <paragraph num="F."> <text>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 State, considering price and the evaluation factors set forth in the request for proposals. In order for a procurement agency to achieve its overall minority participation goal and if the solicitation documents expressly permit it to be done, a procurement agency may, pursuant to COMAR 21.11.03.10A(1), recommend and award a contract to a certified minority business enterprise or to a person whose offer otherwise reflects the greatest amount of certified MBE or minority participation in the event of two or more offers in which the offerors' technical and price proposals are determined by the procurement officer to be equally most advantageous to the State. The MBE documentation required by COMAR 21.11.03.10B shall be used in making this determination. If the procurement agency is not a department, the procurement officer shall promptly notify all offerors of the recommended contract award, otherwise the notification is optional. After obtaining the approval of this recommendation by the agency head or designee, all other approvals required by this title, and certification by the appropriate fiscal authority as to the availability of funds, the procurement agency shall award the contract.</text> </paragraph> <paragraph num="G."> <text>Notice of Award. After a contract is entered into, the procurement agency shall publish notice of its award in eMaryland Marketplace not more than 30 days after the execution and approval of the contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Negotiated Overhead Rates."> <paragraph num="A."> <text>Scope. This regulation sets forth the policies and procedures governing the establishment of overhead rates by negotiation (including determination or settlement) for use in cost-reimbursement type contracts.</text> </paragraph> <paragraph num="B."> <text>Definitions. For purposes of this regulation, the following terms shall have the meanings indicated:</text> <paragraph num="(1)"> <text>“Billing overhead rate” means a tentative percentage or dollar factor which is acceptable to the procurement officer and is established for interim reimbursement purposes.</text> </paragraph> <paragraph num="(2)"> <text>“Negotiated final overhead rate” means a percentage or dollar factor which expresses the ratio or ratios mutually agreed upon by the procurement officer and the contractor after the close of the contractor's fiscal year, unless the parties mutually agree to a different period, of allowable indirect expense incurred for direct labor, manufacturing cost, cost of sales, or other appropriate allocation or distribution base.</text> </paragraph> <paragraph num="(3)"> <text>“Overhead or indirect costs” means the general group of indirect expenses such as those generated in manufacturing departments, engineering departments, tooling departments, general and administrative departments, and, if applicable, indirect costs accumulated by cost centers within these general groups.</text> </paragraph> <paragraph num="(4)"> <text>“Provisional overhead rate” means a tentative percentage or dollar factor mutually agreed upon by the procurement officer and the contractor that is negotiated for interim reimbursement pending final settlement of the actual allowable overhead.</text> </paragraph> </paragraph> <paragraph num="C."> <text>General. The negotiation, determination, or settlement of the reimbursable amount of overhead under cost-reimbursement type contracts is accomplished after the fact on an individual contract basis and is based upon an audit of actual costs incurred during the period involved. However, if a contractor performs work in the same time period under several contracts for one or more procurement activities, it may be desirable and appropriate, when mutually agreed to by the agencies and the contractor, to negotiate uniform overhead rates for application to all the contracts. Nothing contained in this section shall prevent any procurement agency from establishing a maximum overhead rate.</text> </paragraph> <paragraph num="D."> <text>Applicability.</text> <paragraph num="(1)"> <text>A billing overhead rate or negotiated (provisional and final) overhead rate may be used in every cost-reimbursement type contract when its use:</text> <paragraph num="(a)"> <text>Is appropriate; and</text> </paragraph> <paragraph num="(b)"> <text>Will accomplish one or more of the purposes enumerated in this section.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A billing or provisional overhead rate may be used for interim reimbursement only after the procurement officer is satisfied either on the basis of a recent review, as a result of previous audits or past experience with the particular contractor, or similar reliable data or experience obtained from other State or federal sources and included in the contract file, that:</text> <paragraph num="(a)"> <text>The contractor's accounting system (including items treated as indirect costs and the method of distributing them) conforms to generally accepted accounting principles; and</text> </paragraph> <paragraph num="(b)"> <text>The contractor's financial management policies and procedures, including contract financial controls, are adequate for the timely reporting of potential cost overruns and underruns to the contractor's management and to the State.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>If consistent with §D(2), above, a billing or provisional overhead rate or rates may be established, taking into consideration the prior year's experience, adjusted to eliminate nonrecurring costs and to reflect any new or changed conditions which may be applicable to the future. The rate or rates shall be applied to an appropriate base or bases for computation of the interim payments. The elements of indirect cost and the base or bases used in computing interim payments may not be construed as indicating the elements of expense to be distributed or the base or bases of distribution to be employed in the determination or settlement of actual allowable overhead. When the negotiated final overhead rate is determined or settled, any interim payments shall be adjusted accordingly.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Procedure.</text> <paragraph num="(1)"> <text>The procedure for the establishment of overhead rates generally consists of a review of the contractor's overhead rate proposal and the related advisory audit report, conduct of a negotiation conference, preparation of a negotiation report or summary, and execution of contract amendments or supplemental agreements.</text> </paragraph> <paragraph num="(2)"> <text>The determination of the necessity and extent of an advisory audit report, and the extent of the use of the report, is solely the responsibility of the procurement officer.</text> </paragraph> <paragraph num="(3)"> <text>The procurement officer shall arrange for appropriate legal, pricing, technical, or other specialist personnel to assist him in the conducting the negotiation conference.</text> </paragraph> <paragraph num="(4)"> <text>After the completion of the negotiation conference, the procurement officer shall prepare a report or summary of the conference for the contract file.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Limitation on Overhead Cost.</text> <paragraph num="(1)"> <text>Ceilings on overhead rates, beyond which the contractor shall absorb costs, may be desirable in cases of cost-sharing, new companies, recent rapid changes in rates, enhancing contractor's competitive position, or other benefits to the State.</text> </paragraph> <paragraph num="(2)"> <text>If overhead rates resulting from an audit are less than the negotiated ceiling rates, reimbursement shall be made at the lower rates.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Price Negotiation Policies and Techniques."> <paragraph num="A."> <text>Scope. This regulation sets forth the price negotiation policies and techniques applicable to negotiated prime contracts and modification to all types of prime contracts and to subcontracts which are subject to approval or review.</text> </paragraph> <paragraph num="B."> <text>Basic Policy. It is the policy of the State to procure from responsible sources at fair and reasonable prices calculated to result in the lowest ultimate overall cost to the State.</text> </paragraph> <paragraph num="C."> <text>Type of Contract. The selection of an appropriate contract type and the negotiation of prices are related and should be considered together. The circumstances which lead to the selection of a given type of contract at the outset may frequently change, resulting in a different type of contract being more appropriate during later periods.</text> </paragraph> <paragraph num="D."> <text>Objective of Negotiations. Complete agreement of the parties on all basic issues shall be the objective of the negotiations. Except as provided in Regulation .02A(4), discussions shall be conducted with qualified offerors to the extent necessary to resolve uncertainties relating to the procurement, including the proposed price.</text> </paragraph> <paragraph num="E."> <text>Pricing Techniques.</text> <paragraph num="(1)"> <text>General.</text> <paragraph num="(a)"> <text>This section describes the principal price and cost evaluation techniques and the circumstances under which each may be used. They are equally applicable to initial and subsequent price negotiations.</text> </paragraph> <paragraph num="(b)"> <text>“Adequate price competition” means competition between two or more responsible offerors that submitted proposals initially classified by the procurement officer under Regulation .03B as reasonably susceptible of being selected for award.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Requirements for Price or Cost Analysis.</text> <paragraph num="(a)"> <text>General. A price or cost analysis should be performed in connection with every negotiated procurement. Cost analysis shall be performed in accordance with §E(2)(c) when cost or pricing data is required to be submitted. Price analysis shall be used in all other instances to determine the reasonableness of the proposed contract price. Price analysis also may be useful in corroborating the overall reasonableness of a proposed price when the determination of reasonableness was developed through cost analysis.</text> </paragraph> <paragraph num="(b)"> <text>“Price analysis” is the process of examining and evaluating a prospective price with or without evaluation of the separate cost elements and proposed profit of the individual offeror whose price is being evaluated.</text> </paragraph> <paragraph num="(c)"> <text>“Cost analysis” is the review and evaluation of a contractor's cost or pricing data and of the judgmental factors applied in projecting cost or pricing data to the estimated costs, which shall allow the formation of an opinion as to the degree to which the contractor's proposed costs represent what performance of the contract should cost, assuming reasonable economy and efficiency.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Cost or Pricing Data.</text> <paragraph num="(a)"> <text>The requirements of this subsection need not be applied if the procurement officer determines that the price negotiated is based on:</text> <paragraph num="(i)"> <text>Adequate price competition;</text> </paragraph> <paragraph num="(ii)"> <text>Established catalog or market prices of commercial items sold in substantial quantities to the general public; or</text> </paragraph> <paragraph num="(iii)"> <text>Prices set by law or regulation.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>The procurement officer shall require the offeror or contractor, as the case may be, to submit written cost or pricing information or to specifically identify such in writing if actual submission of the data is impracticable, and to certify that, to the best of the offeror's or contractor's knowledge and belief, the cost or pricing data submitted or identified was accurate, complete and current before:</text> <paragraph num="(i)"> <text>The award of any negotiated contract expected to exceed $100,000 in amount or a smaller amount set by the procurement officer; or</text> </paragraph> <paragraph num="(ii)"> <text>The pricing of any modification to any formally advertised or negotiated contract, whether or not cost or pricing data was required in connection with the initial pricing of the contract, when the modification involves an aggregate increase or decrease in costs, plus applicable profits, expected to exceed $100,000.</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>Certification of Current Cost or Pricing Data. When required, certification as contemplated by COMAR 21.06.04.01 shall be included in the contract file together with the documents supporting the negotiation.</text> </paragraph> <paragraph num="(d)"> <text>Defective Cost or Pricing Data. If the certified cost or pricing data is subsequently found to have been inaccurate, incomplete, or noncurrent as of the effective date of the certificate, the State shall be entitled to adjustment of the negotiated price, including profit or fee, to exclude any sum by which the contract price was increased because of the defective data.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>Evaluation and Pricing of Individual Contracts. Each contract shall be priced separately and independently, and no consideration shall be given to losses or profits realized or anticipated in the performance of other contracts. This prohibition neither prevents the negotiation of fixed overhead and other rates applicable to several contracts during annual or other specific periods nor prohibits forward pricing agreements applicable to several contracts. A proposed price reduction under another contract or other contracts may not be used as an evaluation factor.</text> </paragraph> <paragraph num="(5)"> <text>Subcontracting Considerations in Cost Analysis. The procurement officer shall, when appropriate, solicit from the offeror or contractor information concerning:</text> <paragraph num="(a)"> <text>Purchasing practices;</text> </paragraph> <paragraph num="(b)"> <text>The principal components to be subcontracted and the contemplated subcontractors, including:</text> <paragraph num="(i)"> <text>The degree of competition obtained,</text> </paragraph> <paragraph num="(ii)"> <text>Cost or price analysis or price comparisons accomplished, including accurate, complete, and current cost or pricing data, and</text> </paragraph> <paragraph num="(iii)"> <text>The extent of subcontract supervision;</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>The types of subcontracts;</text> </paragraph> <paragraph num="(d)"> <text>The estimated total extent of subcontracting, including procurement of purchased parts and materials.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>Sole Source Items. When purchases of standard commercial or modified standard commercial items are to be made from sole source suppliers, negotiations shall be based on the contractor's price lists and discount or rebate arrangements and conducted on the basis of “most favored customer” or similar practices.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Profit or Fee. The procurement officer, in determining profit or fee, shall follow established policy of the procurement agency or shall give consideration to:</text> <paragraph num="(1)"> <text>Effect of competition;</text> </paragraph> <paragraph num="(2)"> <text>Degree of risk;</text> </paragraph> <paragraph num="(3)"> <text>Nature of work to be performed;</text> </paragraph> <paragraph num="(4)"> <text>Extent of State assistance;</text> </paragraph> <paragraph num="(5)"> <text>Extent of the contractor's investment;</text> </paragraph> <paragraph num="(6)"> <text>Credibility of estimates;</text> </paragraph> <paragraph num="(7)"> <text>Character of contractor's business;</text> </paragraph> <paragraph num="(8)"> <text>Contractor's performance; and</text> </paragraph> <paragraph num="(9)"> <text>Subcontracting.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Debriefing of Unsuccessful Offerors."> <paragraph num="A."> <text>When a contract is to be awarded on some basis other than price alone, unsuccessful offerors may submit a written request for a debriefing to the procurement officer within a reasonable time. Debriefings shall be provided at the earliest feasible time after the procurement officer receives a request for a debriefing and before the contract award is presented to the agency head or designee or the Board for approval. The debriefing shall be conducted by a procurement official familiar with the rationale for the selection decision and contract award.</text> </paragraph> <paragraph num="B."> <text>Debriefing.</text> <paragraph num="(1)"> <text>Debriefing shall:</text> <paragraph num="(a)"> <text>Be limited to discussion of the unsuccessful offeror's proposal and may not include specific discussion of a competing offeror's proposal;</text> </paragraph> <paragraph num="(b)"> <text>Be factual and consistent with the evaluation of the unsuccessful offeror's proposal; and</text> </paragraph> <paragraph num="(c)"> <text>Provide information on areas in which the unsuccessful offeror's technical proposal was deemed weak or deficient.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>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.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A summary of the debriefing shall be made a part of the contract file.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-104, and 13-105, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective June 4, 1984 (11:11 Md. R. 963)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective March 11, 2019 (46:5 Md. R. 310); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective May 2, 2022 (49:9 Md. R. 531); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02G amended as an emergency provision effective April 7, 1989 (16:8 Md. R. 906); amended permanently effective June 26, 1989 (16:12 Md. R. 1338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02G amended effective January 26, 1998 (25:2 Md. R. 79); March 11, 2019 (46:5 Md. R. 310); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective October 12, 1996 (23:20 Md. R. 1426); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03F amended effective December 25, 2023 (50:25 Md. R. 1090)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03G amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06A amended effective January 26, 1998 (25:2 Md. R. 79); April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="04" heading="Procurement by Negotiated Award After Unsatisfactory Competitive Sealed Bidding"> <regulation prefix="Regulation" num=".01" heading="Conditions for Use."> <paragraph num="A."> <text>A negotiated award may be made under this chapter if, after bids have been opened, all bids are rejected pursuant to COMAR 21.06.02.01; if all bids submitted under COMAR 21.05.02 result in bid prices in excess of the funds available for the purchase; or if the procurement officer, with the approval of the agency head or designee, determines that all prices received are unreasonable as to one or more of the requirements and that:</text> <paragraph num="(1)"> <text>There are no additional funds available to permit an award to the responsible bidder submitting the most favorable bid or most favorable evaluated bid; or</text> </paragraph> <paragraph num="(2)"> <text>Any delay resulting from a resolicitation under revised specifications or quantities under competitive sealed bidding as provided in COMAR 21.05.02 would be fiscally disadvantageous or would not otherwise be in the best interest of this State.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If after competitive sealed bidding it is determined that there is only one responsive and responsible bidder, an award may be made to that bidder under COMAR 21.05.05.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Invitation for Revised Bids."> <text>An invitation for revised bids based on revised specifications or quantities shall be issued as promptly as possible, and shall provide for a prompt response to the revised requirements. If the award is to be made without conducting discussions, the invitation for revised bids shall so state.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Discussions."> <text>Discussions may not be conducted with bidders after revised bids have been submitted unless the procurement officer determines that there is compelling need for further negotiation. If there is more than one bidder, any discussions concerning revised specifications or quantities shall be conducted with all responsible bidders. Bidders shall be accorded fair and equal treatment with respect to any discussions.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Award."> <text>An award shall be made upon the basis of the most favorable bid price or most favorable evaluated bid price submitted by a responsive and responsible bidder. Tie bids shall be resolved pursuant to COMAR 21.05.02.14. Notice of the award shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the execution and approval of the contract.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-103, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective June 4, 1984 (11:11 Md. R. 963)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="05" heading="Sole Source Procurement"> <regulation prefix="Regulation" num=".01" heading="Application."> <text>If the procurement officer determines that a competitive source selection method cannot be used because there is only one available source for the subject of the contract or if the proposed contract is one that is contemplated by Regulation .02C or D of this chapter, the procurement officer, after obtaining the approval of the agency head and all other approvals required by law or regulation, may award a contract without competition to the sole source.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Conditions for Use."> <paragraph num="A."> <text>Sole source procurement is not permissible unless a requirement is available from only a single vendor. The following are some examples of circumstances which could necessitate sole source procurement:</text> <paragraph num="(1)"> <text>When only one source exists which meets the requirements;</text> </paragraph> <paragraph num="(2)"> <text>When the compatibility of equipment, accessories, or replacement parts is the paramount consideration;</text> </paragraph> <paragraph num="(3)"> <text>When a sole vendor's item is needed for trial use or testing;</text> </paragraph> <paragraph num="(4)"> <text>When a sole vendor's item is to be procured for resale;</text> </paragraph> <paragraph num="(5)"> <text>When certain public utility services are to be procured and only one source exists.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The determination as to whether a procurement shall be made as a sole source shall be made by the procurement officer, with the approval of the agency head or designee. This determination and the basis for it shall be in writing. The procurement officer may specify the application of the determination and the duration of its effectiveness. In cases of reasonable doubt, competition should be solicited. Any request by a using agency that a procurement be restricted to one vendor shall be accompanied by an acceptable explanation as to why no other shall be suitable or acceptable to meet the need.</text> </paragraph> <paragraph num="C."> <text>Confidential Services.</text> <paragraph num="(1)"> <text>A procurement agency, with the prior written approval of the Office of the Attorney General, may enter into a sole source contract to retain the confidential services of a contractor to represent the interests of the State in connection with threatened or pending litigation.</text> </paragraph> <paragraph num="(2)"> <text>A procurement agency, with the prior written approval of the Office of the Attorney General, may enter into a sole source contract to retain the confidential services of a contractor to represent the interests of the State in connection with:</text> <paragraph num="(a)"> <text>Appraisal of real property contemplated for acquisition by the State; or</text> </paragraph> <paragraph num="(b)"> <text>Collective bargaining.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>If the procurement agency reasonably can anticipate a continuing need for the services described in §C(2) of this regulation, this section does not apply.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Renewal of Real Property Leases. When it is determined to be in the best interests of the State, the procurement officer may negotiate the renewal of an existing real property lease without soliciting other proposals.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Negotiation in Sole Source Procurement."> <text>The procurement officer shall conduct negotiations, as appropriate, as to price, delivery, and terms.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Record of Sole Source Procurement."> <paragraph num="A."> <text>Notice of award shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the execution and approval of the contract. This requirement does not apply to sole source procurements that fall within the small procurement regulations set forth in COMAR 21.05.07.</text> </paragraph> <paragraph num="B."> <text>A record of sole source procurements shall be maintained that lists:</text> <paragraph num="(1)"> <text>Each contractor's name;</text> </paragraph> <paragraph num="(2)"> <text>The amount and type of each contract;</text> </paragraph> <paragraph num="(3)"> <text>A listing of the items procured under each contract; and</text> </paragraph> <paragraph num="(4)"> <text>The identification number of each contract file.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The cumulative record for each fiscal year shall be maintained and submitted as required under Subtitle 13.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-107, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C and D adopted effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A amended effective January 9, 1989 (15:27 Md. R. 3138); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="06" heading="Emergency and Expedited Procurements"> <regulation prefix="Regulation" num=".01" heading="Application."> <paragraph num="A."> <text>Emergency Procurement. Regulation .02 of this chapter is established for procurement of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services in excess of $50,000 when competitive sealed bidding or competitive sealed proposals cannot be used in awarding or modifying a contract because of an emergency. Regulation .02 of this chapter does not apply to field change orders incidental to construction contracts. The procurement officer, with the approval of the agency head or designee, may award an emergency contract by other than competitive sealed bidding under COMAR 21.05.02 or competitive sealed proposals under COMAR 21.05.03.</text> </paragraph> <paragraph num="B."> <text>Expedited Procurement. Regulation .03 of this chapter is established for procurement of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services in excess of $50,000 when competitive sealed bidding or competitive sealed proposals cannot be used in awarding a contract because urgent circumstances require expedited action, and the action is in the public interest and outweighs the benefits of both competitive sealed bidding and competitive sealed proposals.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Emergency Procurements."> <paragraph num="A."> <text>Scope. An emergency procurement shall be limited to the procurement of only the types of items and quantities of items necessary to avoid or to mitigate serious damage to public health, safety, and welfare as further defined in COMAR 21.01.02.01B. The initial term of an emergency contract or any emergency modification awarded under this regulation shall be limited to a maximum of 365 days. Any renewal options that are part of an emergency procurement award shall follow the rules for review and approval of renewal options, including review and approval by a control agency and the Board of Public Works as required under this title.</text> </paragraph> <paragraph num="B."> <text>Authority.</text> <paragraph num="(1)"> <text>Any procurement agency may make an emergency procurement when an emergency arises and the agency's resulting need cannot be met through normal procurement methods.</text> </paragraph> <paragraph num="(2)"> <text>The procurement officer may award an emergency contract or make an emergency contract modification only with the approval of the agency head or designee.</text> </paragraph> <paragraph num="(3)"> <text>Except when delaying a procurement by up to 48 hours would likely result in imminent harm, after obtaining the approval of the head of the unit and before making an emergency procurement, the procurement officer shall obtain the approval of the use of emergency procurement procedures from the Chief Procurement Officer, or the Chief Procurement Officer’s designee. Within 48 hours after receiving a request to use emergency procurement procedures, the Chief Procurement Officer or designee shall approve or disapprove the request. If the Chief Procurement Officer or designee does not approve or disapprove the request to use emergency procurement procedures within 48 hours after receiving the request, the request shall be considered to be approved.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Source Selection and Contract Award.</text> <paragraph num="(1)"> <text>The procedure used shall assure that the required items are procured in time to meet the emergency. Given this constraint, such competition as is possible and practicable shall be obtained, including by making reasonable efforts to solicit at least three oral quotes.</text> </paragraph> <paragraph num="(2)"> <text>Before awarding an emergency procurement contract to a prospective contractor, the procurement officer shall evaluate the contractor’s ability to perform the requirements of the contract based on:</text> <paragraph num="(a)"> <text>The length of time the contractor has been in business;</text> </paragraph> <paragraph num="(b)"> <text>The contractor’s level of experience providing the types and amounts of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services required under the contract; and</text> </paragraph> <paragraph num="(c)"> <text>The contractor’s history of successful procurement contracts with the State and other jurisdictions.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The procurement officer shall execute a written contract with the successful contractor which includes the terms of the emergency procurement and provisions addressing the contractor’s ability to perform the requirements of the contract within the emergency time frame.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Record and Review of Emergency Procurement.</text> <paragraph num="(1)"> <text>Notice of award shall be published in eMaryland Marketplace by the procurement agency on the day of execution and approval of the contract, or as soon as practicable thereafter, but not more than 30 days after the execution and approval of the contract.</text> </paragraph> <paragraph num="(2)"> <text>A record of each emergency procurement shall be made within 7 days of award and shall set forth:</text> <paragraph num="(a)"> <text>The basis and justification for the emergency procurement including the date the emergency first became known;</text> </paragraph> <paragraph num="(b)"> <text>A listing of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services procured;</text> </paragraph> <paragraph num="(c)"> <text>The names of all persons solicited and a justification if the solicitation was limited to one person;</text> </paragraph> <paragraph num="(d)"> <text>The prices and times of performance proposed by the persons responding to the solicitation;</text> </paragraph> <paragraph num="(e)"> <text>The name of and basis for the selection of a particular contractor;</text> </paragraph> <paragraph num="(f)"> <text>The amount and type of the contract or contract modification;</text> </paragraph> <paragraph num="(g)"> <text>A listing of any prior or related emergency contracts, including all contract modifications, executed for purposes of avoiding or mitigating the particular emergency including the aggregate costs;</text> </paragraph> <paragraph num="(h)"> <text>The identification number, if any, of the contract file;</text> </paragraph> <paragraph num="(i)"> <text>The documented approval of the agency head or designee, as required by §B(2) of this regulation; and</text> </paragraph> <paragraph num="(j)"> <text>The documented approval of the Chief Procurement Officer or designee when applicable, as required by §B(3) of this regulation.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>An action agenda item, including the information required by §D(2) of this regulation, shall be forwarded by the procurement agency to the Board and to the appropriate control agency within 15 days of emergency contract award or emergency modification in accordance with COMAR 21.02.01.05A(3)(a).</text> </paragraph> <paragraph num="(4)"> <text>At the Board's request, the appropriate control agency shall review emergency procurement action agenda items and provide recommendations to the Board.</text> </paragraph> <paragraph num="(5)"> <text>The Board may direct the procurement agency or the appropriate control agency to take any action the Board deems appropriate concerning an emergency procurement.</text> </paragraph> <paragraph num="(6)"> <text>If supplies or commodities procured under an emergency procurement contract are not delivered and used within 1 month after the date the contract is awarded, the procuring unit shall:</text> <paragraph num="(a)"> <text>Prepare a report describing the delivery and use status of supplies and commodities procured under the contract at least once per month until all supplies and commodities have been delivered and used; and</text> </paragraph> <paragraph num="(b)"> <text>Submit the reports prepared under §D(6)(a) of this regulation to the Board, the appropriate control agency, and, in accordance with State Government Article, §2-1257, Annotated Code of Maryland, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Emergency Procurement Contracts Valued at $1,000,000 or More.</text> <paragraph num="(1)"> <text>In advance of or concurrent with the execution of an emergency procurement contract that is valued at $1,000,000 or more, a unit may not pay an amount that exceeds $2,000,000, plus 30 percent of the contract value in excess of $2,000,000.</text> </paragraph> <paragraph num="(2)"> <text>Unless authorized by the Board, the unit may not make any additional payment under the contract until at least 30 days after the execution of the contract.</text> </paragraph> <paragraph num="(3)"> <text>Not later than 7 days after awarding an emergency procurement that is valued at $1,000,000 or more, a unit shall submit a copy of the contract to the Board with an action agenda item, including the information required by §D(2) of this regulation, in accordance with COMAR 21.02.01.05A(3)(a).</text> </paragraph> <paragraph num="(4)"> <text>The Board may review an emergency procurement contract submitted under §E(3) of this regulation at a regularly scheduled meeting of the Board or at an emergency meeting called for that purpose, and direct the unit or the appropriate control agency to take any action, including canceling or rescinding the contract, that the Board deems appropriate.</text> </paragraph> </paragraph> <paragraph num="F."> <text>State of Emergency.</text> <paragraph num="(1)"> <text>When the Governor or the head of a unit authorizes an emergency procurement during a state of emergency in order to prepare for or address the state of emergency, the Governor or the head of the unit shall provide written notice to the Legislative Policy Committee within 72 hours after the earlier of the execution of the contract or the expenditure of funds.</text> </paragraph> <paragraph num="(2)"> <text>The notice required by §F(1) of this regulation shall include:</text> <paragraph num="(a)"> <text>The name, business address, and, if applicable, website address of the awarded vendor;</text> </paragraph> <paragraph num="(b)"> <text>The dollar value of the contract;</text> </paragraph> <paragraph num="(c)"> <text>A description of how the funds are to be used; and</text> </paragraph> <paragraph num="(d)"> <text>An explanation of the reasons the procurement is necessary to prepare for or address the emergency.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>After an emergency procurement contract is executed in order to prepare for or address the state of emergency:</text> <paragraph num="(a)"> <text>If requested by the Legislative Policy Committee, the Governor or head of the unit shall provide a copy of the contract to the Legislative Policy Committee; and</text> </paragraph> <paragraph num="(b)"> <text>The Legislative Policy Committee may request that the Office of Legislative Audits conduct an audit of the emergency procurement.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Expedited Procurements."> <paragraph num="A."> <text>Authority.</text> <paragraph num="(1)"> <text>A procurement officer may make an expedited procurement when the following conditions have been met:</text> <paragraph num="(a)"> <text>The procurement officer has made the written determination required by §C of this regulation, and the agency head or designee has approved the determination; and</text> </paragraph> <paragraph num="(b)"> <text>The Board has approved the use of the expedited procurement method.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The Board may approve expedited procurements on a project-by-project or contract-by-contract basis. It may approve or deny a request by the procurement agency to make an expedited procurement and may stipulate any conditions or limitations on the procurement which it deems appropriate.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Source Selection.</text> <paragraph num="(1)"> <text>Competitive solicitation of bids or offers shall be the preferred method of making an expedited procurement and may include:</text> <paragraph num="(a)"> <text>Public notice in a newspaper in general circulation in the area in which the supplies, maintenance, services, commodities, construction, or construction-related services are to be furnished;</text> </paragraph> <paragraph num="(b)"> <text>Notice by posting on the procurement agency's bid board, if any; and</text> </paragraph> <paragraph num="(c)"> <text>Direct solicitation by mail from persons who are believed to be qualified to perform the contract.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A noncompetitive source selection may be made if the time between the date the need to make an expedited procurement first became known to the procurement agency and the date when the contract must be begun is insufficient to permit a competitive solicitation, or for some other reason that precludes use of competitive solicitation.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Determinations. When the expedited procurement method is used, the procurement officer shall make a written determination that:</text> <paragraph num="(1)"> <text>Explains why an expedited procurement best serves the public interest and why the need to make an expedited procurement outweighs the benefits of making the procurement by competitive sealed bidding or competitive sealed proposals; and</text> </paragraph> <paragraph num="(2)"> <text>Justifies any noncompetitive selection.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Approval Procedure.</text> <paragraph num="(1)"> <text>The procurement agency shall obtain the Board's approval before using the expedited procurement method.</text> </paragraph> <paragraph num="(2)"> <text>The procurement agency shall request the Board's approval of an expedited procurement in accordance with COMAR 21.02.01.05A(3)(b). The approval request shall include:</text> <paragraph num="(a)"> <text>The determination required by §C of this regulation, including the documented approval of the agency head or designee as required by §A(1)(a) of this regulation.</text> </paragraph> <paragraph num="(b)"> <text>A detailed statement of the expected impact upon the State if the procurement is not made on an expedited basis. The statement shall include an estimate of lost revenues, if applicable.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Record of Expedited Procurements.</text> <paragraph num="(1)"> <text>Notice of award shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the approval and execution of the contract.</text> </paragraph> <paragraph num="(2)"> <text>A record of each expedited procurement contract shall be made as soon as practicable and shall set forth:</text> <paragraph num="(a)"> <text>The date the Board approved the use of the expedited procurement method;</text> </paragraph> <paragraph num="(b)"> <text>The date of award;</text> </paragraph> <paragraph num="(c)"> <text>The selected contractor's name;</text> </paragraph> <paragraph num="(d)"> <text>The amount and type of the contract;</text> </paragraph> <paragraph num="(e)"> <text>The names of persons solicited and their responses;</text> </paragraph> <paragraph num="(f)"> <text>A listing of supplies, services, maintenance, commodities, construction, or construction-related services procured under the contract;</text> </paragraph> <paragraph num="(g)"> <text>The basis for the selection of a particular contractor; and</text> </paragraph> <paragraph num="(h)"> <text>The identification number, if any, of the contract file.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The record in §E(2) of this regulation shall be reported to the Board within 30 days of contract award as an appendix to the appropriate control agency’s regular action agenda.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">Public Safety Article, §14-117; State Finance and Procurement Article, §§12-101 and 13-108; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective May 6, 1985 (12:9 Md. R. 815)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective April 24, 1995 (22:8 Md. R. 598)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective February 24, 1997 (24:4 Md. R. 294); March 11, 2019 (46:5 Md. R. 310); May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A, D amended effective April 7, 2008 (35:7 Md. R. 751); May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02D amended effective November 7, 2005 (32:22 Md. R. 1759)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03E amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="07" heading="Small Procurement Regulations ($100,000 or Less)"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Competitive bidding” means use of a small procurement solicitation to obtain oral or written bids (including sealed bids) from vendors.</text> </paragraph> <paragraph num="(2)"> <text>“Item” means supplies, commodities, services, information technology, maintenance, construction, and construction-related services.</text> </paragraph> <paragraph num="(3)"> <text>“Oral solicitation” means the procurement officer's oral description of the procurement to a vendor who reasonably may be expected to provide the required item.</text> </paragraph> <paragraph num="(4)"> <text>“Small procurement” means the use of the procedures set forth in this chapter to:</text> <paragraph num="(a)"> <text>Obtain items reasonably expected by the procurement officer to cost $100,000 or less;</text> </paragraph> <paragraph num="(b)"> <text>With respect to those procurements set forth in COMAR 21.01.03.03B, provide annual gross revenues to the contractor of $100,000 or less;</text> </paragraph> <paragraph num="(c)"> <text>With respect to the State Retirement Agency for purposes of administering Title 29, Subtitle 1 of the State Personnel and Pensions Article, spend $100,000 or less during a fiscal year for:</text> <paragraph num="(i)"> <text>Expenses related to independent medical evaluations by a physician; and</text> </paragraph> <paragraph num="(ii)"> <text>Any expenses related to testimony by the physician at administrative hearings on behalf of the Agency;</text> </paragraph> </paragraph> <paragraph num="(d)"> <text>With respect to the Department of Natural Resources, procure contracts for capital projects or maintenance with a value of $200,000 or less; or</text> </paragraph> <paragraph num="(e)"> <text>With respect to the Department of General Services or Department of Transportation, procure construction with a value of $200,000 or less.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>“Written solicitation” means the written description of the procurement.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Authority."> <text>The departments adopt this chapter to govern small procurements.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Application."> <paragraph num="A."> <text>Use of the small procurement method described in this chapter shall be based on an initial decision by the procurement officer that the procurement satisfies the definition set forth in Regulation .01B(6) of this chapter.</text> </paragraph> <paragraph num="B."> <text>To the extent that procurement departments delegate authority to using agencies to make small procurements, those procurements shall be made in accordance with procedures prescribed by the departments, the delegation, and this chapter. Consistent with the delegations made under this section, the heads of the using agencies shall designate, in writing, those procurement officers who may independently and finally authorize sole source small procurements.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Categories."> <text>Small procurements are classified in three categories:</text> <paragraph num="A."> <text>Category I Small Procurements — $5,000 or less;</text> </paragraph> <paragraph num="B."> <text>Category II Small Procurements — More than $5,000 but not more than $50,000; and</text> </paragraph> <paragraph num="C."> <text>Category III Small Procurements — More than $50,000 but not more than $100,000, and, if a procurement for capital projects or maintenance by the Department of Natural Resources or a construction procurement by the Department of General Services or Department of Transportation, not more than $200,000.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Prohibitions."> <paragraph num="A."> <text>A procurement may not be artificially divided in order to use the small procurement method instead of the other procurement methods set forth in COMAR 21.05.01 or a lesser category defined under Regulation .04 of this chapter.</text> </paragraph> <paragraph num="B."> <text>A procurement contract of more than $100,000 may not be awarded under the authority of this chapter unless:</text> <paragraph num="(1)"> <text>The unit obtains prior approval of the agency head or designee, and, if not a department, the appropriate control authority;</text> </paragraph> <paragraph num="(2)"> <text>The Department of General Services or Department of Transportation procures construction valued at $200,000 or less; or</text> </paragraph> <paragraph num="(3)"> <text>The Department of Natural Resources procures capital projects of maintenance valued at $200,000 or less.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Standards."> <paragraph num="A."> <text>Solicitation Objective.</text> <paragraph num="(1)"> <text>Competition.</text> <paragraph num="(a)"> <text>The objective of soliciting bids or offers is to foster competition in obtaining needed items in a cost effective manner. In all small procurements, competition should be sought to the extent practical considering 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. For Categories II and III responsive bids or acceptable offers from at least two vendors should be obtained.</text> </paragraph> <paragraph num="(b)"> <text>A solicitation shall include a summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Minority Business Enterprises. In addition to the solicitation objective set forth in §A(1) of this regulation, each procurement agency shall solicit bids or offers from a sufficient number of certified minority business enterprises listed in the Central Directory, under COMAR 21.11.03.06.</text> </paragraph> <paragraph num="(3)"> <text>Single Bid. If only one responsive bid or acceptable offer is received in response to a solicitation, an award may be made to the bidder or offeror if the procurement officer determines that the price submitted is fair and reasonable, and that the other vendors had reasonable opportunity to respond.</text> </paragraph> <paragraph num="(4)"> <text>Small Businesses. In addition to the solicitation objectives set forth above, procurement agencies shall, consistent with law, attempt to solicit bids or offers from small businesses selected from the certified small business list under COMAR 21.11.01.04.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Solicitation Methods and Use.</text> <paragraph num="(1)"> <text>The acceptable methods of soliciting bids or offers from vendors for small procurements are oral solicitation and written solicitation, as defined in Regulation .01 of this chapter.</text> </paragraph> <paragraph num="(2)"> <text>Procurement agencies may use either or both of the solicitation methods specified in §B(1) of this regulation for Categories I and II Small Procurements. If both oral and written solicitations are used, procurement agencies shall ensure that the solicitation terms are consistent.</text> </paragraph> <paragraph num="(3)"> <text>Except for sole source procurement, procurement agencies shall use written solicitations in attempting to achieve Category III solicitation objectives. Oral solicitations may be used as an addition to the written solicitations. If both oral and written solicitations are used, procurement agencies shall ensure that the solicitation terms are consistent.</text> </paragraph> <paragraph num="(4)"> <text>All Category III solicitations shall be posted on eMaryland Marketplace at least 3 days before bids or offers are due. Procurement agencies are not required to post solicitations for Categories I and II small procurements on eMaryland Marketplace.</text> </paragraph> <paragraph num="(5)"> <text>Electronically transmitted bids or offers may be accepted for small procurements if the procurement agency specifically authorizes electronically transmitted bids or offers in the solicitation.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Standards for Written Solicitations. A written solicitation used for a small procurement shall contain, at a minimum, the following elements:</text> <paragraph num="(1)"> <text>A description of the item requested;</text> </paragraph> <paragraph num="(2)"> <text>Time, date, place, and form of response requested;</text> </paragraph> <paragraph num="(3)"> <text>The basis for award as provided under §D of this regulation;</text> </paragraph> <paragraph num="(4)"> <text>The provisions concerning mercury content under COMAR 21.11.07; and</text> </paragraph> <paragraph num="(5)"> <text>The name and telephone number of the procurement officer.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Basis for Award. The basis for award shall be:</text> <paragraph num="(1)"> <text>Category I Small Procurement — The judgment of the procurement officer;</text> </paragraph> <paragraph num="(2)"> <text>Categories II and III Small Procurements — The most favorable bid price or evaluated bid price, or most advantageous offer, as specified in the solicitation; or</text> </paragraph> <paragraph num="(3)"> <text>In the event of tie bids, the provisions of COMAR 21.05.02.14 shall determine the successful bidder.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Contract Documentation. The following documentation is required for each small procurement:</text> <paragraph num="(1)"> <text>Small Procurements of $5,000 or less:</text> <paragraph num="(a)"> <text>For oral solicitations — a contract shall be documented by a receipt, invoice, repair order, packing slip, or voucher; and</text> </paragraph> <paragraph num="(b)"> <text>For written solicitations — a contract shall be documented by a purchase order or contract; and</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Small Procurements Exceeding $5,000. A written contract is required in the form of a purchase order or other form of contract.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Small Procurement Written Contract Content. Any purchase order or other form of contract used for small procurements shall contain the following elements:</text> <paragraph num="(1)"> <text>Identification of the parties to the contract including contractor taxpayer identification number; the taxpayer identification number shall be the Social Security number for individuals and sole proprietors and the federal employer identification number for all other types of organizations;</text> </paragraph> <paragraph num="(2)"> <text>A statement of the scope of the contract;</text> </paragraph> <paragraph num="(3)"> <text>The dollar value of the contract, if known, or estimated dollar value if the actual value is not known;</text> </paragraph> <paragraph num="(4)"> <text>The term of the contract, including completion or delivery date;</text> </paragraph> <paragraph num="(5)"> <text>Name of the procurement officer responsible for the contract; and</text> </paragraph> <paragraph num="(6)"> <text>A clause containing the following: “The Contractor shall comply with the provisions of State Finance and Procurement Article, Title 19, Annotated Code of Maryland.”</text> </paragraph> </paragraph> <paragraph num="G."> <text>Contract Clauses. In addition to the contract elements specified in §F of this regulation, a written small procurement contract may include the clauses, items, or conditions specified below as well as those additional clauses necessary for the particular procurement. The language of the following clauses is preferred:</text> <paragraph num="(1)"> <text>Termination for Nonappropriation. “If funds are not appropriated or otherwise made available to support continuation in any fiscal year succeeding the first fiscal year, this Contract shall be terminated automatically as of the beginning of the fiscal year for which funds are not available. The Contractor may not recover anticipatory profits or costs incurred after termination.”</text> </paragraph> <paragraph num="(2)"> <text>Maryland Law Prevails. “The law of Maryland shall govern the interpretation and enforcement of this Contract.”</text> </paragraph> <paragraph num="(3)"> <text>Disputes. “Disputes arising under this Contract shall be governed by State Finance and Procurement Article, Title 15, Subtitle 2, Part III, Annotated Code of Maryland, and by COMAR 21.10. Pending resolution of a dispute, the Contractor shall continue to perform this Contract, as directed by the Procurement Officer.”</text> </paragraph> <paragraph num="(4)"> <text>Changes. “This Contract may be amended only with the written consent of both parties. Amendments may not significantly change the scope of the Contract (including the Contract price).”</text> </paragraph> <paragraph num="(5)"> <text>Termination for Default. “If the Contractor does not fulfill obligations under this Contract or violates any provision of this Contract, the State may terminate the Contract by giving the Contractor written notice of termination. Termination under this paragraph does not relieve the Contractor from liability for any damages caused to the State. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B.”</text> </paragraph> <paragraph num="(6)"> <text>Nondiscrimination. “The Contractor shall comply with the nondiscrimination provisions of federal and Maryland law.”</text> </paragraph> <paragraph num="(7)"> <text>Anti-Bribery. “The Contractor certifies that, to the Contractor's best knowledge, neither the Contractor; nor (if the Contractor is a corporation or partnership) any of its officers, directors, or partners; nor any employee of the Contractor who is directly involved in obtaining contracts with the State or with any county, city, or other subdivision of the State, has been convicted of bribery, attempted bribery, or conspiracy to bribe under the laws of any state or of the United States.”</text> </paragraph> <paragraph num="(8)"> <text>Termination for Convenience. “The State may terminate this Contract, in whole or in part, without showing cause upon prior written notice to the Contractor specifying the extent and the effective date of the termination. The State shall pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination and all reasonable costs associated with termination of the Contract. However, the Contractor may not be reimbursed for any anticipatory profits which have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2).”</text> </paragraph> <paragraph num="(9)"> <text>Prompt Payment of Subcontractors.</text> <paragraph num="(a)"> <text>This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §G(9)(a)—(d) of this regulation, the terms “undisputed amount”, “prime contractor”, “contractor”, “subcontractor”, and “supplier” have the meanings stated in COMAR 21.10.08.01.</text> </paragraph> <paragraph num="(b)"> <text>A contractor shall promptly pay its subcontractors and suppliers an undisputed amount to which a subcontractor or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.</text> </paragraph> <paragraph num="(c)"> <text>If a contractor fails to make payment within the period prescribed in §G(9)(b) of this regulation, a subcontractor or supplier may request a remedy in accordance with COMAR 21.10.08.</text> </paragraph> <paragraph num="(d)"> <text>A contractor shall include in its subcontracts at any tier for work under this contract, wording that incorporates the provisions, duties, and obligations of §G(9)(a)—(d) of this regulation, State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08.</text> </paragraph> </paragraph> </paragraph> <paragraph num="H."> <text>Contract Form and Legal Sufficiency. Standard contract forms for small procurements shall be approved for form and legal sufficiency by an attorney designated by the Attorney General.</text> </paragraph> <paragraph num="I."> <text>Small Procurement Record.</text> <paragraph num="(1)"> <text>Each procurement agency shall establish written procedures for maintaining small procurement records. These records shall be maintained by the using agency until audited or for a period of 3 years after final payment, whichever occurs last.</text> </paragraph> <paragraph num="(2)"> <text>Minimum record requirements applicable to small procurement contracts are as follows:</text> <paragraph num="(a)"> <text>Category I Small Procurement Contracts Resulting from Oral Solicitations:</text> <paragraph num="(i)"> <text>Name and telephone number of person expending funds;</text> </paragraph> <paragraph num="(ii)"> <text>Date of contract award;</text> </paragraph> <paragraph num="(iii)"> <text>Name and address of contractor;</text> </paragraph> <paragraph num="(iv)"> <text>Receipt, invoice, repair order, packing slip, or voucher;</text> </paragraph> <paragraph num="(v)"> <text>Brief description of item procured.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Category I Small Procurement Contracts Resulting from Written Solicitations:</text> <paragraph num="(i)"> <text>Name and telephone number of responsible procurement officer;</text> </paragraph> <paragraph num="(ii)"> <text>Date of contract award;</text> </paragraph> <paragraph num="(iii)"> <text>Name and address of contractor;</text> </paragraph> <paragraph num="(iv)"> <text>Purchase order or contract;</text> </paragraph> <paragraph num="(v)"> <text>Invoice and receiving documentation;</text> </paragraph> <paragraph num="(vi)"> <text>Brief description of item procured;</text> </paragraph> <paragraph num="(vii)"> <text>Copy of written solicitation, if used;</text> </paragraph> <paragraph num="(viii)"> <text>Copy of bid board or newspaper notice, if used.</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>Category II and III Small Procurement Contracts Resulting from Written Solicitations:</text> <paragraph num="(i)"> <text>Name and telephone number of responsible procurement officer;</text> </paragraph> <paragraph num="(ii)"> <text>Date of contract award;</text> </paragraph> <paragraph num="(iii)"> <text>Name and address of contractor;</text> </paragraph> <paragraph num="(iv)"> <text>Purchase order or contract;</text> </paragraph> <paragraph num="(v)"> <text>Invoice and receiving documentation;</text> </paragraph> <paragraph num="(vi)"> <text>Description of item procured;</text> </paragraph> <paragraph num="(vii)"> <text>Bid or offer documentation including names of all vendors directly solicited, copies of any written bids or offers received, bid or offer amounts, statement signed by the procurement officer detailing basis of award, identification of minority business enterprises and small businesses directly solicited, and, when only one bid or offer is received in response to a solicitation, an explanation for the lack of a greater response;</text> </paragraph> <paragraph num="(viii)"> <text>Copy of written solicitation;</text> </paragraph> <paragraph num="(ix)"> <text>Copy of eMaryland Marketplace notice, and copy of bid board or newspaper notice, if used;</text> </paragraph> <paragraph num="(x)"> <text>A brief written justification if the procurement was sole source;</text> </paragraph> <paragraph num="(xi)"> <text>For Category III Small Procurements, a copy of certification by the appropriate fiscal authority of fund availability to satisfy the contractual requirement.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="J."> <text>Reporting.</text> <paragraph num="(1)"> <text>Procurement agencies are not required to report small procurements in the annual reports prescribed by State Finance and Procurement Article, §15-111, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(2)"> <text>Procurement agencies are not required to report small procurement awards in eMaryland Marketplace.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Small Procurement Contract Modifications."> <text>Contract modifications to a small procurement contract shall be administered in accordance with the delegations specified in COMAR 21.02.01.04 and the procedures promulgated by the Departments.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-109, 14-301—14-308, 14-406, and 15-226, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective February 24, 1997 (24:4 Md. R. 294); June 29, 1998 (25:13 Md. R. 996); February 23, 2009 (36:4 Md. R. 355); September 21, 2009 (36:19 Md. R. 1438); July 23, 2012 (39:14 Md. R. 839); March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C repealed effective February 24, 1997 (24:4 Md. R. 294)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective February 24, 1997 (24:4 Md. R. 294); September 21, 2009 (36:19 Md. R. 1438); April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended effective February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective February 24, 1997 (24:4 Md. R. 294); February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective September 21, 2009 (36:19 Md. R. 1438)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06A amended effective September 2, 1991 (18:17 Md. R. 1922); May 20, 1996 (23:10 Md. R. 732); February 24, 1997 (24:4 Md. R. 294); March 18, 2002 (29:5 Md. R. 505); July 4, 2005 (32:13 Md. R. 1117); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B amended effective February 24, 1997 (24:4 Md. R. 294); April 7, 2008 (35:7 Md. R. 751); July 23, 2012 (39:14 Md. R. 839); April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06C amended effective May 26, 2003 (30:10 Md. R. 668)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06D amended effective March 18, 2002 (29:5 Md. R. 505)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06E amended effective June 29, 1998 (25:13 Md. R. 996); December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06F amended effective August 2, 1993 (20:15 Md. R. 1221); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06G amended effective November 22, 1993 (20:23 Md. R. 1806); September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06I amended effective February 24, 1997 (24:4 Md. R. 294); June 29, 1998 (25:13 Md. R. 996); July 23, 2012 (39:14 Md. R. 839)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06J amended effective February 24, 1997 (24:4 Md. R. 294); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="08" heading="Mandatory Written Solicitation Requirements"> <regulation prefix="Regulation" num=".01" heading="Public Information Act Notice."> <text>A public information act notice is a mandatory provision for all requests for proposals. The following notice is preferred:</text> <text>“Offerors should give specific attention to the identification of those portions of their proposals that they deem to be confidential, proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the State under the Access to Public Records Act, State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland.”</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Bid Bond Notice."> <paragraph num="A."> <text>Solicitations for construction contracts reasonably expected by the procurement officer to exceed $100,000 shall contain notice of bid security requirements (See COMAR 21.06.07).</text> </paragraph> <paragraph num="B."> <text>Solicitations for all other contracts reasonably expected by the procurement officer to exceed $50,000 and for which the procurement officer wishes to require bid security shall contain notice of the bid security requirements.</text> </paragraph> <paragraph num="C."> <text>Notwithstanding §§A and B of this regulation, notice of bid security is required if a federal law or a condition of federal assistance for the contract requires it.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Minority Business Enterprise Notice."> <text>A minority business enterprise notification is a mandatory provision for all solicitations as follows:</text> <text>“Minority business enterprises are encouraged to respond to this solicitation”.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Minority Business Enterprise Subcontract Participation Goal."> <text>Any solicitation containing an MBE subcontract participation goal, except small procurements made under COMAR 21.05.07, shall include a clause the same as or similar to the following:</text> <paragraph num="A."> <text>"An overall MBE subcontract participation goal of _____ percent of the total contract dollar amount, including all renewal option terms, if any, has been established for this procurement. By submitting a response to this solicitation, the bidder or offeror acknowledges the overall MBE subcontractor participation goal, and commits to achieving the goal by utilizing certified minority business enterprises or requests a full or partial waiver of the goal.”; or</text> </paragraph> <paragraph num="B."> <text>"An overall MBE subcontract participation goal of _____ percent of the total contract dollar amount, including all renewal option terms, if any, has been established for this procurement. The overall MBE subcontract participation goal includes the following subgoals, which have been established for this procurement:</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Nonvisual Access Clause."> <paragraph num="A."> <text>Except as provided in §B of this regulation, the following clause is a mandatory provision for each invitation for bid under COMAR 21.05.02 or request for proposals under COMAR 21.05.03 for the purchase of new or upgraded information and communication technology:</text> </paragraph> <paragraph num="B."> <text>The nonvisual access clause is not required if the procurement officer makes a determination that:</text> <paragraph num="(1)"> <text>The information and communication technology is not available with nonvisual access because the essential elements of the information and communication technology are visual and nonvisual equivalence cannot be developed; or</text> </paragraph> <paragraph num="(2)"> <text>The cost of modifying the information and communication technology for compatibility with software and hardware used for nonvisual access would increase the cost of the procurement by more than 15 percent.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The procurement officer may request such documentation as is reasonably necessary to implement this regulation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Arrearages."> <text>An arrearages clause is a mandatory provision for all solicitations. The language may be varied but shall contain the following information:</text> <text>“By submitting a response to this solicitation, a vendor shall be deemed to represent that it is not in arrears in the payment of any obligation due and owing the State of Maryland, including the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of the contract if selected for contract award.”</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Bid/Proposal Affidavit."> <paragraph num="A."> <text>Each solicitation shall provide notice that the affidavit in §B of this regulation shall be completed and submitted to the procurement agency with the vendor's bid or offer.</text> </paragraph> <paragraph num="B."> <text>Mandatory Solicitation Addendum. The solicitation addendum shall be in substantially the same form as follows and include all certification language required by the State Finance and Procurement Article, Annotated Code of Maryland:</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Conflict of Interest."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="(2)"> <text>Terms Defined.</text> <paragraph num="(a)"> <text>“Conflict of interest” means that, because of other activities or relationships with other persons:</text> <paragraph num="(i)"> <text>A person is unable or potentially unable to render impartial assistance or advice to the State;</text> </paragraph> <paragraph num="(ii)"> <text>The person's objectivity in performing the contract work is or might be otherwise impaired; or</text> </paragraph> <paragraph num="(iii)"> <text>A person has an unfair competitive advantage.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Person.</text> <paragraph num="(i)"> <text>“Person” has the meaning stated in COMAR 21.01.02.01B(64).</text> </paragraph> <paragraph num="(ii)"> <text>“Person” includes a bidder, offeror, contractor, consultant, or subcontractor or subconsultant at any tier, and also includes an employee or agent or any of them if the employee or agent has or will have the authority to control or supervise all or a portion of the work for which a bid or offer is made.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>A solicitation that will result in the selection of a contractor who will assist a unit in the formation, evaluation, selection, award, or execution of a State contract shall provide notice of the requirements of State Finance and Procurement Article, §13-212.1, Annotated Code of Maryland, and this regulation.</text> </paragraph> <paragraph num="C."> <text>If the procurement officer makes a determination before award that facts or circumstances exist giving rise or which could in the future give rise to a conflict of interest, the procurement officer may reject a bid or offer under COMAR 21.06.02.03B.</text> </paragraph> <paragraph num="D."> <text>Termination.</text> <paragraph num="(1)"> <text>After award, the State may terminate the contract, in whole or in part, if it considers termination necessary to avoid an actual or potential conflict of interest.</text> </paragraph> <paragraph num="(2)"> <text>If the contractor knew or reasonably could have been expected to know of an actual or potential conflict of interest before or after award and did not disclose it or misrepresented relevant information to the procurement officer, the State may terminate the contract for default, institute proceedings to debar the contractor from further State contracts, or pursue other remedies as may be permitted by law or the contract.</text> </paragraph> </paragraph> <paragraph num="E."> <text>A conflict of interest may be waived if the procurement officer, with approval of the agency head, determines that waiver is in the best interest of the State. The determination shall state the reasons for the waiver and any controls that avoid, mitigate, or neutralize the conflict of interest.</text> </paragraph> <paragraph num="F."> <text>A bidder or offeror responding to a solicitation that will result in the selection of a contractor who will assist a unit in the formation, evaluation, selection, award, or execution of another State contract shall provide the affidavit and disclosures set forth in §G of this regulation to the procurement officer with the bid or offer and at other times as may be required by the procurement officer.</text> </paragraph> <paragraph num="G."> <text>The affidavits and disclosures required by §F of this regulation shall be in substantially the same form as follows:</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Mercury Content."> <paragraph num="A."> <text>Mercury Content. If required under COMAR 21.11.07, a price preference not exceeding 5 percent shall be applied in the evaluation of bids or proposals in favor of products that are mercury free or if stated elsewhere in the solicitation, to products containing the least amount of mercury. The following mercury affidavit shall be completed and returned with the bid or proposal.</text> </paragraph> <paragraph num="B."> <text>Mercury Affidavit.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Janitorial Services."> <paragraph num="A."> <text>A bid or proposal submitted in response to a solicitation for janitorial services shall include at a minimum:</text> <paragraph num="(1)"> <text>Labor costs;</text> </paragraph> <paragraph num="(2)"> <text>Cost of cleaning supplies; and</text> </paragraph> <paragraph num="(3)"> <text>Projected labor hours to satisfactorily complete the work.</text> </paragraph> </paragraph> <paragraph num="B."> <text>This regulation does not apply to procurements governed by State Finance and Procurement Article, Title 14, Subtitle 1, Annotated Code of Maryland.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">: Election Law Article, §§14-101—14-108; State Finance and Procurement Article, §§3-412, 3.5-311, 11-206, 12-101, 13-207, 13-218, 13-221, 14-303, 14-308, 14-406, 16-102, 16-202, 16-203, 17-401—17-402, and Title 19; Annotated Code of Maryland; Ch. 293, Acts of 2009</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended as an emergency provision effective March 17, 1982 (9:6 Md. R. 612); emergency status expired June 30, 1982; adopted permanently effective July 5, 1982 (9:13 Md. R. 1354)</annotation> <annotation type="History" subtype="Administrative History">Regulations .05A and B amended effective May 6, 1985 (12:9 Md. R. 816)</annotation> <annotation type="History" subtype="Administrative History">Regulations .06 and .07 adopted effective June 4, 1984 (11:11 Md. R. 963)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.07 repealed and new Regulations .01—.07 adopted effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended and C adopted effective May 20, 1996 (23:10 Md. R. 733)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective March 18, 2002 (29:5 Md. R. 505); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 repealed effective November 20, 1994 (21:23 Md. R. 1936)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 adopted effective March 8, 1999 (26:5 Md. R. 393)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05A, B amended September 18, 2023 (50:18 Md. R. 800); April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07B amended effective October 1, 1990 (17:19 Md. R. 2322); August 2, 1993 (20:15 Md. R. 1221); November 20, 1994 (21:23 Md. R. 1936); January 26, 1998 (25:2 Md. R. 79); November 7, 2005 (32:22 Md. R. 1759); March 12, 2007 (34:5 Md. R. 562); April 7, 2008 (35:7 Md. R. 751); May 31, 2010 (37:11 Md. R. 766); August 8, 2011 (38:16 Md. R. 946); July 23, 2012 (39:14 Md. R. 839); May 13, 2013 (40:9 Md. R. 789); January 2, 2017 (43:26 Md. R. 1449); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 adopted as an emergency provision effective August 8, 1997 (24:18 Md. R. 1294); emergency status rescinded effective October 16, 1997 (24:23 Md. R. 1608)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 adopted effective July 9, 2001 (28:13 Md. R. 1216)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08B amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08B, E amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 adopted effective May 26, 2003 (30:10 Md. R. 668)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> </annotations> </chapter> <chapter num="09" heading="Intergovernmental Cooperative Purchasing"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Governmental entity” means:</text> <paragraph num="(a)"> <text>The federal government or an agency or other instrumentality of the federal government;</text> </paragraph> <paragraph num="(b)"> <text>Another state or an agency or other instrumentality of another state;</text> </paragraph> <paragraph num="(c)"> <text>A bistate or multistate agency;</text> </paragraph> <paragraph num="(d)"> <text>A county, municipal corporation, or other political subdivision of the State or of another state, or an agency or other instrumentality of the political subdivision;</text> </paragraph> <paragraph num="(e)"> <text>A bicounty or multicounty agency;</text> </paragraph> <paragraph num="(f)"> <text>A primary procurement unit or the University System of Maryland; or</text> </paragraph> <paragraph num="(g)"> <text>An affiliation, alliance, consortium, or group composed solely of governmental entities that is established for purposes of promoting intergovernmental cooperative purchasing.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Intergovernmental cooperative purchasing agreement” means a contract:</text> <paragraph num="(a)"> <text>That is:</text> <paragraph num="(i)"> <text>Entered into by at least one governmental entity and a person selected in a manner that is consistent with the purposes set forth under COMAR 21.01.01.03;</text> </paragraph> <paragraph num="(ii)"> <text>Available by its express terms for use by the governmental entity entering the contract and at least one additional governmental entity which may be, but need not be, an original party to the contract; and</text> </paragraph> <paragraph num="(iii)"> <text>Intended to promote efficiency and savings that can result from intergovernmental cooperative purchasing; or</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Between a primary procurement unit and a person who, at the time the intergovernmental cooperative purchasing agreement is awarded, has a contract with the federal government or an agency or other instrumentality of the federal government, and who agrees to provide the unit with identical prices, terms, and conditions as stipulated in the federal contract.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“Lead jurisdiction” means a governmental entity that sponsors or conducts an intergovernmental purchasing agreement and on behalf of the participants issues, receives, opens, and evaluates bids or proposals received in response to a solicitation.</text> </paragraph> <paragraph num="(4)"> <text>“Primary procurement unit” means:</text> <paragraph num="(a)"> <text>The State Treasurer;</text> </paragraph> <paragraph num="(b)"> <text>The Department of General Services;</text> </paragraph> <paragraph num="(c)"> <text>The Department of Transportation;</text> </paragraph> <paragraph num="(d)"> <text>The Maryland Port Commission;</text> </paragraph> <paragraph num="(e)"> <text>Morgan State University;</text> </paragraph> <paragraph num="(f)"> <text>St. Mary's College of Maryland; and</text> </paragraph> <paragraph num="(g)"> <text>The University System of Maryland.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Cooperative Purchasing Authorized."> <paragraph num="A."> <text>Subject to COMAR 21.02.01, a primary procurement unit may participate in, conduct, sponsor, or administer an intergovernmental cooperative purchasing agreement when a determination under Regulation .04 of this chapter is made.</text> </paragraph> <paragraph num="B."> <text>A primary procurement unit may not sponsor, conduct, or participate in an intergovernmental cooperative purchasing agreement for architectural or engineering services except when the procurement is conducted by the State, and pursuant to COMAR 21.12.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Forms of Intergovernmental Cooperative Purchasing."> <paragraph num="A."> <text>Consolidated Requirements. The preferred form of intergovernmental cooperative purchasing is when participating governmental entities aggregate their common requirements for purposes of maximizing economies of scale when soliciting bids or proposals. Under this form:</text> <paragraph num="(1)"> <text>Each participating governmental entity agrees to procure its respective requirements from the successful bidder or offeror; and</text> </paragraph> <paragraph num="(2)"> <text>A lead jurisdiction conducts the procurement on behalf of all participants and either a master contract award or awards will be made by the lead jurisdiction on behalf of all participants, or, if stated in the solicitation, each participant may elect to award its own contract or contracts pursuant to the criteria stated in the invitation for bids or request for proposals.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Except as prohibited under §C of this regulation, a primary procurement unit may purchase its requirements from another governmental entity's contract if that contract is an intergovernmental cooperative purchasing agreement and is available for use by the primary procurement unit.</text> </paragraph> <paragraph num="C."> <text>Federal Contracts. A primary procurement unit may contract with a vendor that has a current contract with the federal government or an agency or instrumentality of the federal government, if the vendor agrees to provide the unit with identical prices, terms, and conditions as stipulated in the federal contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Determinations Required."> <paragraph num="A."> <text>The procurement officer for a primary procurement unit shall make a determination in accordance with §B or C of this regulation before the primary procurement unit may:</text> <paragraph num="(1)"> <text>Initially sponsor or participate in an intergovernmental cooperative purchasing agreement;</text> </paragraph> <paragraph num="(2)"> <text>Renew an intergovernmental cooperative purchasing agreement; or</text> </paragraph> <paragraph num="(3)"> <text>Modify an intergovernmental cooperative purchasing agreement.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A determination under §A(1) of this regulation shall be in writing and include:</text> <paragraph num="(1)"> <text>Sufficient evidence that the intergovernmental cooperative purchasing agreement:</text> <paragraph num="(a)"> <text>Will provide cost benefits to the State; or</text> </paragraph> <paragraph num="(b)"> <text>Will promote administrative efficiencies, or promote intergovernmental cooperation; and</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A statement how the intergovernmental cooperative purchasing agreement:</text> <paragraph num="(a)"> <text>Is in the best interest of the State; and</text> </paragraph> <paragraph num="(b)"> <text>Is not intended as a means to evade the purposes set forth under COMAR 21.01.01.03.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>A determination under §A(2) or (3) of this regulation shall be in writing and include:</text> <paragraph num="(1)"> <text>Sufficient evidence that the intergovernmental cooperative purchasing agreement:</text> <paragraph num="(a)"> <text>Will provide cost benefits to the State; and</text> </paragraph> <paragraph num="(b)"> <text>Will promote administrative efficiencies, or promote intergovernmental cooperation; and</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A statement how the intergovernmental cooperative purchasing agreement:</text> <paragraph num="(a)"> <text>Is in the best interest of the State; and</text> </paragraph> <paragraph num="(b)"> <text>Is not intended to evade the purposes set forth under COMAR 21.01.01.03.</text> </paragraph> </paragraph> </paragraph> <paragraph num="D."> <text>A primary procurement unit shall post each determination required under this regulation on the primary procurement unit’s website before sponsoring, participating in, renewing, or modifying an intergovernmental cooperative purchasing agreement.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Approvals Required."> <text>Before awarding, sponsoring, or participating in an intergovernmental cooperative purchasing agreement, the procurement officer shall obtain the approval of the primary procurement unit head or designee, and any other approvals as required under this title.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Contract Types."> <text>An intergovernmental cooperative purchasing agreement may be in the form of a “Definite Quantity Contract” or an “Indefinite Quantity Contract” (which includes requirements contracts), or any other contract type permitted under COMAR 21.06.03.</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Public Notice."> <text>When a primary procurement unit is a named participant in a solicitation for bids or proposals for an intergovernmental cooperative purchasing agreement, or the unit acts as a sponsor of an agreement, and the value of the procurement to be made by the State is expected to exceed $50,000, public notice of the solicitation shall be given pursuant to COMAR 21.05.02.04.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="State Sponsored Agreements."> <text>If a primary procurement unit sponsors an intergovernmental cooperative purchasing agreement:</text> <paragraph num="A."> <text>The solicitation shall contain all clauses, terms, and conditions required under this title as well as a summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries;</text> </paragraph> <paragraph num="B."> <text>The State's portion of the contract shall be awarded in the same manner as the contract would be awarded under this title if the unit was the sole participant under the contract, including compliance with all notice requirements; and</text> </paragraph> <paragraph num="C."> <text>All procedures under this title, including procedures governing contract approvals, shall apply to the State's participation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Protests and Disputes."> <paragraph num="A."> <text>Any protests or disputes, including contract claims, arising from the State's participation in a State-sponsored intergovernmental cooperative purchasing agreement shall be resolved in accordance with the provisions of this title.</text> </paragraph> <paragraph num="B."> <text>If the State participates in an intergovernmental cooperative purchasing agreement sponsored by another governmental entity, a protest, dispute, or contract claim shall be handled in accordance with the provisions of the intergovernmental cooperative purchasing agreement.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Participation by Political Subdivisions in State Contracts."> <text>A political subdivision of the State may participate under any intergovernmental purchasing agreement sponsored by a primary procurement unit in a manner consistent with the terms of the agreement.</text> </regulation> <regulation prefix="Regulation" num=".11" heading="Use of State-Sponsored Contracts."> <paragraph num="A."> <text>The use of a State-sponsored contract by governmental entities who are potential participants is at the discretion of the governmental entity.</text> </paragraph> <paragraph num="B."> <text>Participants may obtain their respective requirements by placing purchase orders or delivery orders against the State-sponsored contract in accordance with the contract.</text> </paragraph> <paragraph num="C."> <text>Payment, inspection and acceptance, exercise of warranty rights, and other contract rights and obligations are the responsibility of the participant placing the purchase order or delivery order.</text> </paragraph> <paragraph num="D."> <text>The participant who places the purchase order or delivery order is responsible for securing performance from the contractor. The failure of the contractor to perform for a participant does not require the State or other participants to default the contractor or otherwise to terminate the contract. Upon request of a participant, the State may cooperate with the participant to attempt to secure performance.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-102, 13-110, and 14-303, Annotated Code of Maryland; Ch. 774, Acts of 2017</annotation> <annotation type="History" subtype="Administrative History">Effective date: October 5, 1998 (25:20 Md. R. 1533)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective October 18, 1999 (26:21 Md. R. 1631); January 22, 2001 (28:1 Md. R. 27); March 12, 2007 (34:5 Md. R. 562); July 23, 2012 (39:14 Md. R. 839); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective April 11, 2005 (32:7 Md. R. 685)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08A amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08B amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> </annotations> </chapter> <chapter num="10" heading="Construction Management at Risk"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Construction management at risk” means a project delivery method wherein a construction manager provides a range of preconstruction services and construction management services which may include, but are not limited to, cost estimation and consultation regarding the design of the project, prequalifying and evaluating trade contractors and subcontractors, awarding the trade contracts and subcontracts, scheduling, cost control, and value engineering.</text> </paragraph> <paragraph num="(2)"> <text>“Construction manager” means the sole proprietorship, partnership, corporation, or other legal entity that provides construction management services.</text> </paragraph> <paragraph num="(3)"> <text>“Guaranteed maximum price (GMP)” means the agreed dollar amount for the construction and construction management services, including the specified scope of work, the cost of the trade work, the general conditions, contingency, and the fees charged by the construction management firm.</text> </paragraph> <paragraph num="(4)"> <text>“Preconstruction services” means services provided by the construction manager before construction which include, but are not limited to, constructability analysis, value engineering, scheduling, site assessments, and cost estimates.</text> </paragraph> <paragraph num="(5)"> <text>“Trade contract” means an agreement which sets out the terms and conditions upon which the construction manager engages trade contractors.</text> </paragraph> <paragraph num="(6)"> <text>“Trade contractor” means a subcontractor who specializes in a particular aspect of a construction project such as plumbing, electrical, or painting.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="General."> <paragraph num="A."> <text>Procurement agencies not otherwise exempt from this title may not use the construction management at risk project delivery method for construction projects estimated at less than $10,000,000 without prior approval from the Board of Public Works.</text> </paragraph> <paragraph num="B."> <text>Cost savings resulting from projects completed below the guaranteed maximum price may be shared between the procurement agency and the construction manager.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Selection of the Construction Manager."> <paragraph num="A."> <text>Procurement agencies shall use the competitive sealed proposals procurement method under COMAR 21.05.03 to select the construction manager.</text> </paragraph> <paragraph num="B."> <text>Procurement agencies shall obtain separate Board of Public Works approval for preconstruction services, regardless of dollar value, and each GMP that exceeds the Board delegations of procurement and contracting authority in COMAR 21.02.01.04.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Guaranteed Maximum Price."> <paragraph num="A."> <text>The construction manager warrants that the work will be completed at or below the GMP with provisions for change order adjustments for owner-directed work that is outside the agreed-upon GMP work scope and not otherwise covered by the contingency.</text> </paragraph> <paragraph num="B."> <text>The GMP shall be based on design documents that are not less developed than 50 percent construction documents for the applicable scope of work.</text> </paragraph> <paragraph num="C."> <text>The GMP shall be agreed to as an amendment to the contract between the procurement agency and the construction manager.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Trade Contracts."> <paragraph num="A."> <text>The construction manager assumes all risk for the cost, schedule, and performance of the trade contracts.</text> </paragraph> <paragraph num="B."> <text>Trade contracts may be procured concurrently or over the life of the project.</text> </paragraph> <paragraph num="C."> <text>The construction manager or procurement unit shall send the solicitation notice for trade proposals to the Governor's Office of Small, Minority & Women Business Affairs and publish the notice in a newspaper of general circulation near the project, or Internet media, or both, at least 14 days before trade proposals are due. If the construction manager restricts trade proposals to prequalified contractors, the solicitation notice shall include information on the prequalification process.</text> </paragraph> <paragraph num="D."> <text>The procurement agency shall publish notice of the project, contact information of the construction manager, and general information on trade proposal solicitation on its website and eMaryland Marketplace.</text> </paragraph> <paragraph num="E."> <text>The construction manager may, subject to approval by the procurement officer, select trade contractors based on evaluation factors other than low bid, including, but not limited to, MBE participation, past performance, and special qualifications.</text> </paragraph> <paragraph num="F."> <text>The construction manager shall comply with the State's Nondiscrimination Clause as provided in State Finance and Procurement Article, §13-219, Annotated Code of Maryland, and the Commercial Nondiscrimination Policy as provided in State Finance and Procurement Article, Title 19, Annotated Code of Maryland.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-103—13-104, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: August 23, 2010 (37:17 Md. R. 1186)</annotation> </annotations> </chapter> <chapter num="11" heading="Design-Build"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms defined.</text> <paragraph num="(1)"> <text>“Design build” means a project delivery method in which a single entity is contractually responsible for both design and construction of a project.</text> </paragraph> <paragraph num="(2)"> <text>“Design professional” means an architect or professional engineer who is licensed to conduct business in the State of Maryland.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Determination on Use of the Design-Build Method."> <text>Before the solicitation is issued, the procurement officer shall prepare a written determination justifying the use of the design-build method which addresses some or all of the following criteria:</text> <paragraph num="A."> <text>The extent to which the unit can adequately define the project requirements;</text> </paragraph> <paragraph num="B."> <text>Time constraints for delivery of the project;</text> </paragraph> <paragraph num="C."> <text>Capability and experience of prospective contractors with the design-build method or similar experience;</text> </paragraph> <paragraph num="D."> <text>Suitability of the project for use of the design-build method of project delivery with respect to time, schedule, costs, and quality factors; and</text> </paragraph> <paragraph num="E."> <text>Capability of the agency to manage the project.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Licensing Requirements."> <text>Each design-builder shall employ or have as a partner, member, officer, joint venture partner, or subcontractor at least one design professional duly licensed and registered to do business in the State.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Selection of the Design-Builder."> <paragraph num="A."> <text>Selection of a design-builder shall be conducted using the multi-step sealed bid procurement method as provided in COMAR 21.05.02.17 or the competitive sealed proposals procurement method as provided in COMAR 21.05.03.</text> </paragraph> <paragraph num="B."> <text>The invitation for bids or request for proposals shall contain at a minimum:</text> <paragraph num="(1)"> <text>The minimum qualifications of the design-builder;</text> </paragraph> <paragraph num="(2)"> <text>Requirements for construction and design experience and experience in other design-build projects provided the requirements do not unduly restrict competition;</text> </paragraph> <paragraph num="(3)"> <text>The scope of work; and</text> </paragraph> <paragraph num="(4)"> <text>Responsibilities of the State and design-builder particularly in the areas of design defects and warranties.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-103—13-104, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: August 23, 2010 (37:17 Md. R. 1186)</annotation> </annotations> </chapter> <chapter num="12" heading="Procurement of Human, Social, Cultural, and Educational Services"> <regulation prefix="Regulation" num=".01" heading="Scope."> <text>This chapter applies to procurements of human, social, cultural, and educational services.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Notice of Certain Contracts."> <paragraph num="A."> <text>Locally Funded Contracts.</text> <paragraph num="(1)"> <text>This section applies to a solicitation for a contract to provide human, social, cultural, or educational services if the contract is to be funded in part by a county or by Baltimore City under a legislative mandate or prior agreement.</text> </paragraph> <paragraph num="(2)"> <text>Not later than the date the solicitation is publicly available, the procurement officer shall send a copy of it to the chief elected official, or designee, of the funding jurisdiction for review and comment. The procurement officer shall request the funding jurisdiction to provide its written comments within 30 days.</text> </paragraph> <paragraph num="(3)"> <text>The procurement officer may not award the contract without considering timely funding jurisdiction comments, if any, submitted pursuant to §A(2) of this regulation. The procurement officer shall make a determination with respect to any timely funding jurisdiction comments that are not to be implemented.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Contracts with Government Entities. The procuring unit shall give notice in eMaryland Marketplace of any award, extension, or renewal of a human, social, or educational services contract with a State agency, a political subdivision of the State, or other government, that results in a total contract price of more than $50,000, not more than 30 days after the approval and execution of the contract, extension, or renewal.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Procurement Methods."> <paragraph num="A."> <text>Competitive sealed proposals under COMAR 21.05.03 is the preferred method for procuring human, social, cultural, and educational services.</text> </paragraph> <paragraph num="B."> <text>Human, social, cultural, and educational services may be procured in accordance with the competitive sealed bidding procurement method, COMAR 21.05.02.</text> </paragraph> <paragraph num="C."> <text>Human, social, cultural, and educational services of $50,000 or less may be procured in accordance with the small procurement method, COMAR 21.05.07.</text> </paragraph> <paragraph num="D."> <text>Human, social, cultural, and educational services may be procured in accordance with the sole source procurement method, COMAR 21.05.05, for the purpose of a demonstration project, or in accordance with COMAR 21.05.05.02A or Regulation .06C of this chapter.</text> </paragraph> <paragraph num="E."> <text>Human, social, cultural, and educational services may be procured in accordance with the emergency procurement method, COMAR 21.05.06, for the reasons specified in COMAR 21.05.06.02, or when an unforeseeable condition that seriously threatens the health, safety, or general welfare of third-party clients causes an immediate and serious need that cannot be met through other procurement methods.</text> </paragraph> <paragraph num="F."> <text>Human, social, and educational services may be procured in accordance with the noncompetitive negotiation procurement method, Regulation .04 of this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Noncompetitive Negotiated Procurement of Human, Social, or Educational Services."> <paragraph num="A."> <text>Only human, social, or educational services may be procured by this method.</text> </paragraph> <paragraph num="B."> <text>The noncompetitive negotiated procurement method may be used if:</text> <paragraph num="(1)"> <text>The procurement officer, with the approval of the agency head, determines that two or more sources for the services are available but that, because of the absence of effective competition, it is unreasonable to expect those sources to respond to an invitation for bids under COMAR 21.05.02 or request for proposals under COMAR 21.05.03.</text> </paragraph> <paragraph num="(2)"> <text>The procurement is to obtain one of the following services:</text> <paragraph num="(a)"> <text>An employer in a program of on the job training for employment and training purposes;</text> </paragraph> <paragraph num="(b)"> <text>Group foster care services for children or adults under a negotiated rate system adopted by regulation; or</text> </paragraph> <paragraph num="(c)"> <text>The following services for the mentally ill:</text> <paragraph num="(i)"> <text>Residential rehabilitation services,</text> </paragraph> <paragraph num="(ii)"> <text>Community rehabilitation services (psychosocial), or</text> </paragraph> <paragraph num="(iii)"> <text>Therapeutic group home services for children and adolescents.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Public Notice.</text> <paragraph num="(1)"> <text>At least 10 days before general expressions of interest are due, the procurement agency shall give public notice of its general requirements for services and request interested service providers to respond with written general expressions of interest.</text> </paragraph> <paragraph num="(2)"> <text>Public notice of any request for expressions of interest shall:</text> <paragraph num="(a)"> <text>Be sent to known potential providers; and</text> </paragraph> <paragraph num="(b)"> <text>Be sent to interested advocacy organizations.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>If the procurement agency expects that any contract may exceed $25,000, the request for general expressions of interest shall so state and shall be published in eMaryland Marketplace.</text> </paragraph> </paragraph> <paragraph num="D."> <text>As a need for the services arises, the procurement officer may:</text> <paragraph num="(1)"> <text>Conduct discussions with one or more responsible service providers that previously submitted an expression of interest; and</text> </paragraph> <paragraph num="(2)"> <text>Award a contract to a provider if the procurement agency head, on the basis of discussions or past experience with the provider, determines that an award will be in the State's best interest.</text> </paragraph> </paragraph> <paragraph num="E."> <text>As far as practicable in the course of a particular noncompetitive negotiated procurement, the procurement officer shall give responsible service providers that submitted acceptable or potentially acceptable expressions of interest fair and equal treatment with respect to discussions.</text> </paragraph> <paragraph num="F."> <text>Notice of any award, regardless of amount, under this regulation shall be published in eMaryland Marketplace.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Solicitation Requirements for Human and Social Services."> <paragraph num="A."> <text>This regulation applies to solicitations for human and social services by the Maryland Department of Health, the Department of Human Services, the Department of Juvenile Services, the Department of Disabilities, and the Department of Aging.</text> </paragraph> <paragraph num="B."> <text>The solicitation shall:</text> <paragraph num="(1)"> <text>Explicitly refer to any applicable program standards adopted by the Maryland Department of Health, the Department of Human Services, the Department of Juvenile Services, the Department of Disabilities, or the Department of Aging;</text> </paragraph> <paragraph num="(2)"> <text>Require each offering provider to indicate how it has or will meet these standards; and</text> </paragraph> <paragraph num="(3)"> <text>Indicate that the contractor shall meet these standards before it provides any services under the contract.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Solicitation selection criteria shall include, as applicable, minimum qualifications of providers, minimum qualifications of program staff, minimum facility standards, past performance, and general program and fiscal accountability standards.</text> </paragraph> <paragraph num="D."> <text>The solicitation shall, where relevant, request information concerning providers' proposals for easing any transition for third-party clients from the former provider to the offering provider and from the offering provider to a later provider.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Multi-Year and Sole Source Human and Social Services Contracts — Assurance of Continuity of Third-Party Client Care."> <paragraph num="A."> <text>This regulation applies to contracts for human and social services and, in addition to other regulations, authorizes multi-year and sole source contracts.</text> </paragraph> <paragraph num="B."> <text>Multi-Year Contracts.</text> <paragraph num="(1)"> <text>In order to assure continuity of human or social services care, a procurement agency may enter a multi-year contract for human or social services when:</text> <paragraph num="(a)"> <text>The conditions in COMAR 21.06.03.09 are met; or</text> </paragraph> <paragraph num="(b)"> <text>The procurement officer, with the approval of the agency head, determines that it is not reasonable to expect that a contract for a single fiscal year will be sufficient to alleviate the conditions for which a group of third-party clients will receive the services.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The procurement officer shall follow the procedures required by COMAR 21.06.03.09D.</text> </paragraph> <paragraph num="(3)"> <text>A multi-year contract, including any option periods, may extend for more than 3 years only with the prior express approval of the Board of Public Works.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Sole Source Contracts.</text> <paragraph num="(1)"> <text>In order to provide continuity of human or social services care to current third-party clients, the procurement officer shall, before the contract with the current provider expires, attempt to negotiate a sole source contract with the current provider if:</text> <paragraph num="(a)"> <text>A sole source contract with the current provider is authorized under COMAR 21.05.05.02A; or</text> </paragraph> <paragraph num="(b)"> <text>Based on an assessment by a licensed or certified health practitioner, the head of a funding unit determines that a change in the human or social services provider would have a detrimental impact on those clients currently being served by the provider. The licensed or certified health practitioner shall be a psychologist, social worker, physician, nurse, or qualified developmental disabilities professional (QDDP), as defined in COMAR 10.22.03.01B(25), and:</text> <paragraph num="(i)"> <text>May be employed by the procurement agency; but</text> </paragraph> <paragraph num="(ii)"> <text>May not be employed by the provider that has the human or social services contract with the procurement agency for the third-party clients.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(2)"> <text>Before issuing a solicitation for services to be provided to current third-party clients, the procurement officer shall:</text> <paragraph num="(a)"> <text>Decide whether a sole source contract will be negotiated for any of these current clients under §C(1) of this regulation;</text> </paragraph> <paragraph num="(b)"> <text>Exclude from the solicitation any current third-party client for whom a sole source contract has been negotiated; and</text> </paragraph> <paragraph num="(c)"> <text>Include in the solicitation a notice of any current sole source contract negotiations for current third-party clients, and a statement that these clients might not be included in any contract resulting from the solicitation.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Approvals."> <paragraph num="A."> <text>Pursuant to COMAR 21.02.01.05A(1), the Board of Public Works shall review and approve an award of a human, social, cultural, or educational services contract for more than $200,000 before the contract is executed, unless the contract results from an emergency procurement.</text> </paragraph> <paragraph num="B."> <text>Pursuant to COMAR 21.02.01.04B, the Department of General Services shall review and approve an award of a human, social, cultural, or educational services contract for $200,000 or less before the contract is executed, unless the contract results from an emergency procurement or a small procurement.</text> </paragraph> <paragraph num="C."> <text>A human, social, cultural, or educational services contract resulting from an emergency procurement shall be reported as provided in COMAR 21.02.01.05A(3)(a).</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-102, 13-104, 13-106, 13-108, and 13-109, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07B, C amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> </annotations> </chapter> <chapter num="13" heading="Master Contracting"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meaning indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Designated procurement unit” means:</text> <paragraph num="(a)"> <text>The Department of General Services;</text> </paragraph> <paragraph num="(b)"> <text>The Department of Transportation; or</text> </paragraph> <paragraph num="(c)"> <text>The Department of Information Technology, only with respect to an information technology master contract executed before July 1, 2022, until the earlier of:</text> <paragraph num="(i)"> <text>The expiration date of all information technology master contracts; or</text> </paragraph> <paragraph num="(ii)"> <text>June 30, 2027.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Master contract” means a set of master contractor agreement awards in which only those master contractors with awards in that set may compete for secondary competition awards for a specific type of service, supply, or commodity.</text> </paragraph> <paragraph num="(3)"> <text>“Master contracting” means a streamlined procurement method that provides for the qualification of bidders and offerors for the procurement of services, supplies, or commodities, that is subject to secondary competition for the awarding of work.</text> </paragraph> <paragraph num="(4)"> <text>“Master contractor” means a person awarded a master contractor agreement and qualified to compete to provide categories of services, supplies, or commodities under secondary competition.</text> </paragraph> <paragraph num="(5)"> <text>“Master contractor agreement” means an executed standard contract for a specified period of time between the State and a person approved as a master contractor that is subject to secondary competition for the awarding of work.</text> </paragraph> <paragraph num="(6)"> <text>“Secondary competition” means a procurement process in which only approved master contractors may compete to provide the services, supplies, or commodities under the procurement.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Conditions for Use."> <paragraph num="A."> <text>The master contracting procurement method is the exclusive method by which master contractor agreements may be awarded. Only a designated procurement unit may use the master contracting procurement method for selecting qualified bidders or offerors to be awarded master contractor agreements.</text> </paragraph> <paragraph num="B."> <text>A unit of the Executive Branch may issue a secondary competition solicitation to master contractors.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Solicitations for Awarding Master Contractor Agreements."> <paragraph num="A."> <text>The solicitation for awarding master contractor agreements shall include:</text> <paragraph num="(1)"> <text>The categories of services, supplies, or commodities in which an offeror may submit a proposal for qualification;</text> </paragraph> <paragraph num="(2)"> <text>Information concerning proposal submission requirements, including the date, time, and place for the receipt of proposals;</text> </paragraph> <paragraph num="(3)"> <text>A statement that discussions may be conducted with those responsible offerors that submit proposals initially judged by the procurement officer to be reasonably susceptible of being selected for award. However, if the request for proposals so notifies all offerors, discussions need not be conducted:</text> <paragraph num="(a)"> <text>With respect to prices that are fixed by law or regulation, except that consideration shall be given to competitive terms and conditions;</text> </paragraph> <paragraph num="(b)"> <text>If time of delivery or performance does not permit discussions; or</text> </paragraph> <paragraph num="(c)"> <text>If it can be demonstrated clearly from the existence of adequate competition or accurate prior cost experience with the particular item, that acceptance of an initial offer without negotiation would result in a fair and reasonable price;</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>The mandatory solicitation requirements set forth in COMAR 21.05.08;</text> </paragraph> <paragraph num="(5)"> <text>All required contract terms and conditions; and</text> </paragraph> <paragraph num="(6)"> <text>A summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Public Notice.</text> <paragraph num="(1)"> <text>Distribution. Solicitations or notices of the availability of solicitations shall be mailed or otherwise furnished to a sufficient number of vendors for the purpose of securing competition. Notices of availability shall indicate where, when, and for how long solicitations may be obtained, generally describe the service, supply, or commodity desired, and may contain other appropriate information.</text> </paragraph> <paragraph num="(2)"> <text>Publication. Notice of solicitations for which the proposal is reasonably expected to exceed $50,000 shall be published in eMaryland Marketplace unless the resulting master contractor agreement is reasonably expected to be performed entirely outside this State or the District of Columbia. Publication shall be at least 20 days before the proposal submission date. Publication of notice less than 20 days before proposal submission is defective unless notice of the project is not required by State law.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Proposal preparation time is the period of time between the date of publication of the solicitation and the time and date set for receipt of proposals. The proposal preparation time shall be a minimum of 20 days.</text> </paragraph> <paragraph num="D."> <text>Pre-Proposal Conferences.</text> <paragraph num="(1)"> <text>Pre-proposal conferences may be conducted by the procurement officer or designee to explain the procurement requirements.</text> </paragraph> <paragraph num="(2)"> <text>If a pre-proposal conference is held, it shall be announced to all prospective offerors who were sent a solicitation or who are known by the procurement officer to have obtained the solicitation documents.</text> </paragraph> <paragraph num="(3)"> <text>Any pre-proposal conference should be held long enough after the solicitation has been issued to allow prospective offerors to become familiar with it, but sufficiently before proposal opening to allow consideration of the pre-proposal conference results in the preparation of proposals.</text> </paragraph> <paragraph num="(4)"> <text>Attendance at a pre-proposal conference may be encouraged, but may not be made mandatory except to the extent required under COMAR 21.11.03.09C(2)(e). Nothing stated at the pre-proposal conference may change the solicitation unless a change is made by the procurement officer by written amendment.</text> </paragraph> <paragraph num="(5)"> <text>Pre-Proposal Conference Records.</text> <paragraph num="(a)"> <text>When a pre-proposal conference is held in connection with a procurement that is expected to exceed $100,000, the procurement officer shall ensure that a written record of the conference is prepared as soon as practicable and that the record is sent to all prospective offerors who were sent a solicitation or who are known by the procurement officer to have obtained the solicitation.</text> </paragraph> <paragraph num="(b)"> <text>When a pre-proposal conference is held and a conference summary is made, the procurement officer shall ensure that the summary is sent to all prospective offerors who were sent a solicitation or who are known by the procurement officer to have obtained the solicitation.</text> </paragraph> <paragraph num="(c)"> <text>The record or summary of a pre-proposal conference is a public record that is open to public inspection during ordinary business hours.</text> </paragraph> <paragraph num="(d)"> <text>Electronic records and transmissions of a pre-bid conference satisfy the requirements of this regulation.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>Electronic Pre-Proposal Conferences.</text> <paragraph num="(a)"> <text>Electronic pre-proposal conferences may be conducted if specifically permitted or required in the solicitation.</text> </paragraph> <paragraph num="(b)"> <text>An electronic pre-proposal conference shall permit interactive communication between all prospective offerors and the procurement officer.</text> </paragraph> <paragraph num="(c)"> <text>If pre-proposal conferences are conducted by electronic means, prospective offerors shall be notified of the:</text> <paragraph num="(i)"> <text>Date and time set for the electronic pre-proposal conference; and</text> </paragraph> <paragraph num="(ii)"> <text>Manner and duration of the interactive session.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Amendments to Solicitations.</text> <paragraph num="(1)"> <text>Form. Each amendment to a solicitation shall be identified as such and shall require that the offeror acknowledge its receipt. The amendment shall reference the portion of the solicitation it amends. The procurement officer shall authorize the issuance of an amendment.</text> </paragraph> <paragraph num="(2)"> <text>Distribution. Amendments shall be sent to all prospective offerors who were sent a solicitation or who are known to the procurement officer to have obtained the solicitation documents.</text> </paragraph> <paragraph num="(3)"> <text>Timeliness. Amendments shall be distributed within a reasonable time to allow prospective offerors to consider them in preparing their proposals. If the time and date for receipt of proposals does not permit preparation, the time shall be increased to the extent possible in the amendment or, if necessary, by electronic communication or telephone and confirmed in the amendment.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Late Proposals, Withdrawals, and Modifications.</text> <paragraph num="(1)"> <text>Policy. Any proposal received at the place designated in the solicitation after the time and date set for receipt of proposal is late. Any request for withdrawal or request for modification received at the place designated in the solicitation after the time and date set for receipt of proposals is late.</text> </paragraph> <paragraph num="(2)"> <text>Treatment. A late proposal, late request for modification, or late request for withdrawal may not be considered. Upon the written approval of the Office of the Attorney General, exceptions may be made when a late proposal, withdrawal, or modification is received before master contractor agreement award, and the proposal, modification, or withdrawal would have been timely but for the action or inaction of State personnel directing the procurement activity or their employees. A late modification of a successful proposal that makes its terms more favorable to the State shall be considered at any time it is received and may be accepted upon the written approval of the Office of the Attorney General.</text> </paragraph> <paragraph num="(3)"> <text>Records. A record shall be made of each request for late proposal acceptance, modification, or withdrawal which shall be retained in the appropriate procurement file.</text> </paragraph> </paragraph> <paragraph num="G."> <text>Receipt of Proposals.</text> <paragraph num="(1)"> <text>Proposals and modifications shall be held in a secure place until the established due date. Proposals may not be opened publicly but shall be opened in the presence of at least two State employees. After the established due date, a register of proposals shall be prepared that identifies each offeror.</text> </paragraph> <paragraph num="(2)"> <text>The identity of an offeror and the register of proposals may not be disclosed before the procurement officer makes a determination recommending the award of the master contractor agreement pursuant to Regulation .04B of this chapter. After master contractor agreement award, proposals shall be open to public inspection subject to the provisions of the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Evaluation of Proposals for Awarding Master Contractor Agreements and Debriefings."> <paragraph num="A."> <text>The designated procurement unit shall establish a procedure for the consideration and approval of proposals for qualification of multiple offerors in each category of services, supplies, or commodities in the master contract.</text> </paragraph> <paragraph num="B."> <text>Upon completion of all discussions, the procurement officer shall make a determination recommending award of the master contractor agreement to the responsible offerors whose proposals are determined to be qualified for a particular master contract considering price and evaluation factors set forth in the solicitation. After obtaining the approval of this recommendation by the agency head or designee, all other approvals required by this title, and certification by the appropriate fiscal authority as to the availability of funds, the designated procurement unit may award the master contractor agreements.</text> </paragraph> <paragraph num="C."> <text>Notice of Award. After a master contractor agreement is entered into, the designated procurement unit shall publish notice of its award in eMaryland Marketplace not more than 30 days after the execution and approval of the master contractor agreement.</text> </paragraph> <paragraph num="D."> <text>Debriefing of Unsuccessful Offerors.</text> <paragraph num="(1)"> <text>When a master contractor agreement is to be awarded on some basis other than price alone, unsuccessful offerors may submit a written request for a debriefing to the procurement officer within a reasonable time. Debriefing shall be provided at the earliest feasible time after the procurement officer receives a request for a debriefing and before the master contractor agreement award is presented to the agency head or designee or the Board for approval. The debriefing shall be conducted by a procurement official familiar with the rationale for the selection decision and master contractor agreement award.</text> </paragraph> <paragraph num="(2)"> <text>Debriefing shall:</text> <paragraph num="(a)"> <text>Be limited to discussion of the unsuccessful offeror’s proposal and may not include specific discussion of a competing offeror’s proposal;</text> </paragraph> <paragraph num="(b)"> <text>Be factual and consistent with the evaluation of the unsuccessful offeror’s proposal; and</text> </paragraph> <paragraph num="(c)"> <text>Provide information on areas in which the unsuccessful offeror’s technical proposal was deemed weak or deficient.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>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 master contractor agreement award.</text> </paragraph> <paragraph num="(4)"> <text>A summary of the debriefing shall be made a part of the master contractor agreement file.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Secondary Competition Solicitation."> <paragraph num="A."> <text>A unit of the Executive Branch that requires services, supplies, or commodities available under a master contract may, with the approval of the designated procurement unit that awarded the master contract, issue a secondary competition solicitation to master contractors within that master contract, as follows:</text> <paragraph num="(1)"> <text>If the unit of the Executive Branch expects the total cost of the services, supplies, or commodities in the secondary competition to exceed $100,000, the unit shall issue the secondary competition solicitation to all master contractors in the appropriate category in the master contract established by the designated procurement unit; or</text> </paragraph> <paragraph num="(2)"> <text>If the unit of the Executive Branch expects the total cost of the services, supplies, or commodities in the secondary competition to be $100,000 or less, the unit shall issue the secondary competition solicitation to a minimum of six master contractors or all master contractors, whichever is less, in the appropriate category in the master contract established by the designated procurement unit. If the total number of master contractors available to be solicited exceeds six, the procurement officer shall make a written determination including the reasons why the particular master contractors were selected to be solicited.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The master contract shall specify the type of secondary competition solicitation to be used from the following:</text> <paragraph num="(1)"> <text>Task Order Request for Proposals (TORFP):</text> <paragraph num="(a)"> <text>To be used when a scope of work for services, supplies, or commodities requires master contractors to submit proposals which are then evaluated to determine the most advantageous award for the State.</text> </paragraph> <paragraph num="(b)"> <text>A TORFP shall follow the provisions for Competitive Sealed Proposals and requests for proposals as set forth in COMAR 21.05.03, except for task order evaluation and award, which shall follow Regulation .06 of this chapter. The minimum proposal preparation time requirement in COMAR 21.05.02.02 and the minimum public notice time requirement in COMAR 21.05.02.04B are both shortened to at least 10 days from solicitation publication to proposal submission for a TORFP.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Purchase Order Request for Proposals (PORFP):</text> <paragraph num="(a)"> <text>To be used when specific services, supplies, or commodities are available at a fixed price, typically as defined in a catalog or price sheet of the master contract.</text> </paragraph> <paragraph num="(b)"> <text>A PORFP shall follow the provisions for Competitive Sealed Bidding and invitations for bids as set forth in COMAR 21.05.02, except for purchase order evaluation and award, which shall follow Regulation .06 of this chapter. The minimum bidding time requirement in COMAR 21.05.02.02 and the minimum public notice time requirement in COMAR 21.05.02.04B are both shortened to at least 10 days from solicitation publication to bid submission for a PORFP.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Request for Resumes (RFR):</text> <paragraph num="(a)"> <text>To be used when temporary personnel are required.</text> </paragraph> <paragraph num="(b)"> <text>An RFR requests master contractors to submit resumes for qualified candidates in response to a specific scope of work, with resumes evaluated, candidates interviewed, and selection made in accordance with Regulation .06 of this chapter.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>The secondary competition solicitation shall include a statement of the factors that will be used in evaluating a master contractor’s response and the relative importance of each factor.</text> </paragraph> <paragraph num="D."> <text>The secondary competition solicitation shall include a summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.</text> </paragraph> <paragraph num="E."> <text>The designated procurement unit that awarded the master contract may require the secondary competition solicitation to be reviewed and approved by that designated procurement unit prior to publication.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Secondary Competition Evaluation, and Awards."> <paragraph num="A."> <text>The procuring unit of the Executive Branch that has received responses from master contractors to a secondary competition solicitation shall evaluate the responses and may select a master contractor for award based on the response that is determined to be the most advantageous to the State considering the evaluation factors set forth in the secondary competition solicitation.</text> </paragraph> <paragraph num="B."> <text>If expressly permitted in the secondary competition solicitation, secondary competition awards may include renewal options, and awards may be made to more than one master contractor.</text> </paragraph> <paragraph num="C."> <text>The total dollar amount of secondary competition awards to master contractors may not exceed the monetary ceiling value of the particular master contract from which the secondary competition was solicited.</text> </paragraph> <paragraph num="D."> <text>Secondary competition awards to master contractors may not exceed the period of performance of the particular master contract from which the secondary competition was solicited unless the master contract is modified to be extended for a period of time to allow for a task order to continue beyond the term of the original master contract, and that period of time is no longer than one-third of the base term of the original master contract. No additional task orders may be issued after the master contract’s original, unmodified end date.</text> </paragraph> <paragraph num="E."> <text>A TORFP award by a unit of the Executive Branch shall include a performance evaluation procedure to be used by the unit to evaluate the performance of the master contractor that has completed work on the task order.</text> </paragraph> <paragraph num="F."> <text>The designated procurement unit that awarded the master contract may require the secondary competition award recommendation to be reviewed and approved by that designated procurement unit prior to award.</text> </paragraph> <paragraph num="G."> <text>Procurement agencies are required to report secondary competition awards over $50,000 in eMaryland Marketplace.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Construction Master Contract Exceptions."> <text>The requirements in Regulations .05A(1) and (2) and C and .06A of this chapter do not apply to a master contract for construction that is procured and awarded under this chapter and states how task orders will be awarded and the maximum number of qualified contractors that will be awarded a master contractor agreement for construction.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-101, 13-102, 13-113, 13-114 and 14-303, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05D adopted effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06H repealed effective May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> <chapter num="14" heading="Auction Bids"> <regulation prefix="Regulation" num=".01" heading="Auction Bids Authorized."> <paragraph num="A."> <text>A primary procurement unit may procure supplies and services using the auction bids procurement method.</text> </paragraph> <paragraph num="B."> <text>Whenever the head of a primary procurement unit or designee determines that it is in the best interest of the State for a procurement contract to be based on auction bids, a procurement officer shall seek bids by issuing an invitation for auction bids.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Invitation for Auction Bids."> <paragraph num="A."> <text>Subject to subsection §B of this regulation, an invitation for auction bids shall include:</text> <paragraph num="(1)"> <text>The specifications of the procurement contract;</text> </paragraph> <paragraph num="(2)"> <text>Whether the procurement contract will be awarded based on the lowest bid price or the lowest evaluated bid price;</text> </paragraph> <paragraph num="(3)"> <text>If the procurement contract will be based on evaluated bid price, the objective measurable criteria by which the lowest evaluated bid price will be determined;</text> </paragraph> <paragraph num="(4)"> <text>The small business preference, if designated under COMAR 21.11.01.05;</text> </paragraph> <paragraph num="(5)"> <text>The date and time when bidding will commence and the date and time when bidding will end or the event upon which bidding will end;</text> </paragraph> <paragraph num="(6)"> <text>The mandatory solicitation requirements set forth in COMAR 21.05.08; and</text> </paragraph> <paragraph num="(7)"> <text>A summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.</text> </paragraph> </paragraph> <paragraph num="B."> <text>In the discretion of the procurement officer, the invitation for auction bids may:</text> <paragraph num="(1)"> <text>Include a request for unpriced technical offers or samples;</text> </paragraph> <paragraph num="(2)"> <text>Direct bidders to submit price bids after the unit evaluates the technical offers or samples and finds they are acceptable under the criteria set forth in the invitation for auction bids; and</text> </paragraph> <paragraph num="(3)"> <text>Inform all bidders who submitted technical offers or samples of the identity of each bidder who submitted an acceptable technical offer or sample.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A unit shall give public notice of an invitation for auction bids in the same manner as required for an invitation for bids under COMAR 21.05.02.</text> </paragraph> <paragraph num="D."> <text>The period of time between the date of publication of the invitation for auction bids and the date and time when bidding will commence shall be a minimum of 20 days.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Price Bids."> <paragraph num="A."> <text>A procurement officer shall:</text> <paragraph num="(1)"> <text>Receive bids in public at the time and place designated in the invitation for auction bids; and</text> </paragraph> <paragraph num="(2)"> <text>Record the amount of each bid at the time it is received.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The amount of a price bid shall be available for public inspection from the time it is received.</text> </paragraph> <paragraph num="C."> <text>The identity of the bidder submitting a price bid may not be available for public inspection until bidding has ended.</text> </paragraph> <paragraph num="D."> <text>Price bids may not be received until after the unit has completed evaluation of the technical offers or samples.</text> </paragraph> <paragraph num="E."> <text>A price bid may not be received at any time if the bid is submitted by a bidder whose technical offer or sample has been evaluated as unacceptable to the unit.</text> </paragraph> <paragraph num="F."> <text>Multiple price bids are permitted in response to an invitation for auction bids. When a bidder submits multiple bids, each bid shall be judged independently and may not revoke previous bids of that bidder.</text> </paragraph> <paragraph num="G."> <text>Except as provided in §H of this regulation, a bid is irrevocable, after receipt, for the period specified in the invitation for auction bids.</text> </paragraph> <paragraph num="H."> <text>A procurement officer may allow a bidder to correct or withdraw a bid if correction or withdrawal is:</text> <paragraph num="(1)"> <text>Allowed under regulations applicable to an invitation for bids under COMAR 21.05.02; and</text> </paragraph> <paragraph num="(2)"> <text>Approved in writing by the Office of the Attorney General.</text> </paragraph> </paragraph> <paragraph num="I."> <text>If there is more than one bidder, discussions about revised specifications or quantities shall be conducted with all responsible bidders who submitted responsive bids. The bidders shall be treated fairly and equally with respect to any discussions.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Award."> <paragraph num="A."> <text>After obtaining any approval required by law or regulation, the procurement officer shall award the procurement contract to the responsible bidder who submits the responsive bid that:</text> <paragraph num="(1)"> <text>Is the lowest bid price; or</text> </paragraph> <paragraph num="(2)"> <text>If the invitation for auction bids so provides, is the lowest evaluated bid price.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If, after bids have been received, a procurement officer determines that only one responsible bidder has submitted a responsive bid, the unit may negotiate the procurement contract with that one bidder under the procedures for sole source procurement in COMAR 21.05.05.</text> </paragraph> <paragraph num="C."> <text>After bids have been received, a procurement officer may award a procurement contract on the basis of revised bids if:</text> <paragraph num="(1)"> <text>All bids are rejected under COMAR 21.06.02;</text> </paragraph> <paragraph num="(2)"> <text>All bid prices exceed the funds available for the procurement; or</text> </paragraph> <paragraph num="(3)"> <text>With the approval of the head of a primary procurement unit or a designee, the procurement officer determines that all bids are unreasonable as to at least one requirement and the delay that would result from issuing a new invitation for auction bids with revised specifications or quantities would be fiscally disadvantageous or otherwise not in the best interests of the State.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Invitation for Revised Auction Bids."> <paragraph num="A."> <text>If one of the conditions set forth under Regulation .04C of this chapter exists, as promptly as possible, the procurement officer shall:</text> <paragraph num="(1)"> <text>Issue an invitation for revised auction bids, which shall state whether the award will be made without competitive negotiations; and</text> </paragraph> <paragraph num="(2)"> <text>Require a prompt response to that invitation.</text> </paragraph> </paragraph> <paragraph num="B."> <text>An invitation for revised auction bids is not subject to the notice requirements in Regulation .02C of this chapter.</text> </paragraph> <paragraph num="C."> <text>After revised bids have been submitted, negotiations with bidders may not be conducted unless the procurement officer determines that there is a compelling reason to negotiate.</text> </paragraph> <paragraph num="D."> <text>After revised bids have been received and any approvals required by law or regulation have been obtained, the procurement officer shall award the procurement contract to the responsible bidder who submits a responsive bid that:</text> <paragraph num="(1)"> <text>Is the lowest bid price; or</text> </paragraph> <paragraph num="(2)"> <text>If the invitation for revised bids so provides, is the lowest evaluated bid price.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Publicizing Awards."> <text>Not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish notice of the award in eMaryland Marketplace.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§13-102, 13-111, and 14-303, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: September 18, 2023 (50:18 Md. R. 800)</annotation> </annotations> </chapter> <chapter num="15" heading="Pay-for-Success Contracting"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meaning indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Aggregator” means a person that:</text> <paragraph num="(a)"> <text>Provides or contracts for environmental outcomes; or</text> </paragraph> <paragraph num="(b)"> <text>Provides or raises capital to finance delivery of environmental outcomes.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Environmental outcome” means a commodity that is modeled or directly measured as a single, quantifiable, and certified unit of improvement to the environment, including a nutrient or carbon benefit.</text> </paragraph> <paragraph num="(3)"> <text>“Environmental outcomes project” means a project designed to secure environmental outcomes.</text> </paragraph> <paragraph num="(4)"> <text>“Evaluator” means a person other than an aggregator that determines whether environmental outcomes have been achieved based on defined performance measures.</text> </paragraph> <paragraph num="(5)"> <text>“Outcome payment” means the money paid when a pay-for-success contract performance measure is met.</text> </paragraph> <paragraph num="(6)"> <text>“Pay-for-success contracting” means a performance-based procurement method through which a unit contracts with an organization to deliver services or commodities in exchange for payment based on the achievement of outcomes.</text> </paragraph> <paragraph num="(7)"> <text>“Quantification plan” means a plan in which an aggregator describes:</text> <paragraph num="(a)"> <text>The method that will be used to measure or model environmental outcomes and co-benefits under a pay-for-success contract;</text> </paragraph> <paragraph num="(b)"> <text>The compliance monitoring that will occur to ensure that the actions proposed in the pay-for-success contract are taken and maintained over the life of the project;</text> </paragraph> <paragraph num="(c)"> <text>Verification steps that will be carried out by the State to confirm model results or accurate measurement of environmental outcomes; and</text> </paragraph> <paragraph num="(d)"> <text>The timeline for proposed payments under the pay-for-success contract.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Background."> <text>The General Assembly has found and declared that:</text> <paragraph num="A."> <text>Pay-for-success contracting shifts the risk of performance to the contractor because government payment is made only on achievement of outcomes;</text> </paragraph> <paragraph num="B."> <text>Social and environmental impact investment is growing dramatically, and investors are seeking ways to finance and execute pay-for-success contracts in the State to expand the success of Chesapeake Bay restoration efforts and achieve other public outcomes; and</text> </paragraph> <paragraph num="C."> <text>It is in the best interest of the State to include pay-for-success contracting as a procurement option, particularly for units responsible for land conservation and environmental protection, enhancement, and restoration.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Application."> <paragraph num="A."> <text>A unit may enter into a pay-for-success contract only if the procurement officer of the unit determines that:</text> <paragraph num="(1)"> <text>The contract will produce estimated financial savings or other quantifiable public benefits for the State; and</text> </paragraph> <paragraph num="(2)"> <text>A substantial portion of the outcome payment due under the contract will be paid only after specific outcomes have been documented.</text> </paragraph> </paragraph> <paragraph num="B."> <text>This chapter applies only to procurements by:</text> <paragraph num="(1)"> <text>The Department of Agriculture;</text> </paragraph> <paragraph num="(2)"> <text>The Department of the Environment;</text> </paragraph> <paragraph num="(3)"> <text>The Department of Natural Resources;</text> </paragraph> <paragraph num="(4)"> <text>The Department of Transportation;</text> </paragraph> <paragraph num="(5)"> <text>The Maryland Environmental Service; and</text> </paragraph> <paragraph num="(6)"> <text>The Department of General Services.</text> </paragraph> </paragraph> <paragraph num="C."> <text>This chapter does not apply to the purchase of nitrogen load reductions with funds from the Clean Water Commerce Account of the Bay Restoration Fund established under Environment Article, §9-1605.2, Annotated Code of Maryland.</text> </paragraph> <paragraph num="D."> <text>A unit specified in §B of this regulation may enter into a pay-for-success contract with an aggregator to procure:</text> <paragraph num="(1)"> <text>Delivery of an environmental outcomes project; or</text> </paragraph> <paragraph num="(2)"> <text>Already certified environmental outcomes.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Other State and local entities may participate in a pay-for-success contract under this chapter in accordance with an intergovernmental cooperative purchasing agreement under COMAR 21.05.09.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Pay-for-Success Contracts."> <paragraph num="A."> <text>A pay-for-success contract executed under this regulation shall include:</text> <paragraph num="(1)"> <text>A quantification plan approved by the unit;</text> </paragraph> <paragraph num="(2)"> <text>A statement of the environmental outcomes to be procured under the contract and a description of how defined performance measures will demonstrate progress in achieving these outcomes;</text> </paragraph> <paragraph num="(3)"> <text>Requirements regarding the content and frequency of progress reports regarding the achievement of environmental outcomes;</text> </paragraph> <paragraph num="(4)"> <text>A methodology for calculating the amount and timing of outcome payments to an aggregator when the evaluator determines that the aggregator has achieved a defined performance measure;</text> </paragraph> <paragraph num="(5)"> <text>A statement that the basis of payment is the determination of achievement of environmental outcomes by the evaluator and that payments for those outcomes do not require itemized billing or cost documentation by the aggregator; and</text> </paragraph> <paragraph num="(6)"> <text>Terms addressing:</text> <paragraph num="(a)"> <text>Compliance with State law;</text> </paragraph> <paragraph num="(b)"> <text>Nondiscrimination in employment;</text> </paragraph> <paragraph num="(c)"> <text>Contractor indemnification;</text> </paragraph> <paragraph num="(d)"> <text>Termination for default; and</text> </paragraph> <paragraph num="(e)"> <text>The unit’s right to inspect the environmental outcomes project.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>A pay-for-success contract executed under this regulation may include provisions regarding:</text> <paragraph num="(1)"> <text>Long-term maintenance and monitoring of environmental services, including the establishment of a stewardship fund;</text> </paragraph> <paragraph num="(2)"> <text>A requirement that the unit hold contract funds in a reserve account for outcome payments;</text> </paragraph> <paragraph num="(3)"> <text>For agriculture services, payment for achievement of baseline water quality requirements for nitrogen, phosphorus, or sediment; or</text> </paragraph> <paragraph num="(4)"> <text>Terminations prior to the first payment under the contract for the purpose of selling environmental outcomes without penalty to another entity or for any other reason.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Review and Evaluation of Results by the Maryland Environmental Service."> <paragraph num="A."> <text>Beginning July 2025 and every 3 years thereafter, the Maryland Environmental Service shall review and evaluate the results of all pay-for-success contracts completed under this section for the previous 3 fiscal years.</text> </paragraph> <paragraph num="B."> <text>The first review conducted under §A of this regulation shall include a review of all pay-for-success contracts completed under this section between July 1, 2022, and June 30, 2025.</text> </paragraph> <paragraph num="C."> <text>The review conducted under §A of this regulation shall include:</text> <paragraph num="(1)"> <text>The cost of each project performed under a contract;</text> </paragraph> <paragraph num="(2)"> <text>The length of time taken to complete the project, from the date of notice to proceed until completion;</text> </paragraph> <paragraph num="(3)"> <text>The average cost and project duration for each project type; and</text> </paragraph> <paragraph num="(4)"> <text>Whether each project met the terms of its contract.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Each unit that enters into a pay-for-success contract under this regulation shall execute an agreement with the Maryland Environmental Service to reimburse the Service for each of the unit’s completed contracts the Service reviews under this regulation.</text> </paragraph> <paragraph num="E."> <text>The Maryland Environmental Service shall provide copies of each review conducted under this regulation to:</text> <paragraph num="(1)"> <text>Each unit for which the Service reviewed and evaluated a contract; and</text> </paragraph> <paragraph num="(2)"> <text>In accordance with State Government Article, §2-1257, Annotated Code of Maryland, the Senate Education, Health, and Environmental Affairs Committee, the Senate Budget and Taxation Committee, the House Environment and Transportation Committee, and the House Appropriations Committee.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§13-101, 13-102, and 13-112.1, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: September 18, 2023 (50:18 Md. R. 800)</annotation> </annotations> </chapter> <chapter num="16" heading="Proof of Concept Procurement"> <regulation prefix="Regulation" num=".01" heading="Proof of Concept Definitions and Procedures."> <paragraph num="A."> <text>“Proof of concept” means a test, evaluation, demonstration, or pilot project of a good, service, or technology in a real–world environment to evaluate whether the good, service, or technology can be successfully deployed and is beneficial to the State, in accordance with State Finance and Procurement Article, §13-116(A), Annotated Cod of Maryland.</text> </paragraph> <paragraph num="B."> <text>A “Competitive Proof of Concept Procurement” means a formal competitive procurement method that may be used to solicit proposals for the conduct of a proof of concept prior to full implementation when the head of a unit determines the process to be appropriate and in the best interests of the unit, including:</text> <paragraph num="(1)"> <text>Testing software–as–a–service or off–the–shelf software;</text> </paragraph> <paragraph num="(2)"> <text>Testing new, innovative products or services; or</text> </paragraph> <paragraph num="(3)"> <text>Testing a product or service conceptualized or conceived of by a unit of State government, in accordance State Finance and Procurement Article, §13-116(B)(1), Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="C."> <text>After obtaining the approval of the head of the procurement agency and before conducting a competitive proof of concept procurement, the procuring unit shall obtain approval from the Secretary of Information Technology, or the Secretary’s Designee.</text> </paragraph> <paragraph num="D."> <text>The Secretary of Information Technology may grant approval for a competitive proof of concept procurement if the procuring unit:</text> <paragraph num="(1)"> <text>Has sufficient internal resources to manage the proof of concept, including human capital, subject matter expertise, and technological infrastructure, or has the means to obtain these resources; and</text> </paragraph> <paragraph num="(2)"> <text>Enters into a memorandum of understanding with the Department of Information Technology that requires regular status updates, vendor capacity, and any other information necessary for the Department of Information Technology to evaluate whether the proof of concept can be successfully deployed and is beneficial to the State.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Proof of Concept Solicitation."> <paragraph num="A."> <text>A competitive proof of concept procurement:</text> <paragraph num="(1)"> <text>May be conducted through the issuance of a solicitation by any method of procurement authorized under COMAR 21.05.01.01; and</text> </paragraph> <paragraph num="(2)"> <text>Shall include a statement of the following:</text> <paragraph num="(a)"> <text>The scope of work or project description, including</text> <paragraph num="(i)"> <text>The intended use;</text> </paragraph> <paragraph num="(ii)"> <text>Quantity;</text> </paragraph> <paragraph num="(iii)"> <text>Estimated time frame for the proof of concept; and</text> </paragraph> <paragraph num="(iv)"> <text>Anticipated number of proof of concept awards that will be made;</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>The factors, including price, that will be used in evaluating proposals and the relative importance of each.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>A competitive proof of concept procurement solicitation may be distributed to vendors known to offer goods or services within the scope of the proof of concept and shall, except for procurements less than $15,000 not otherwise required by law to be posted, be posted on eMaryland Marketplace Advantage.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Proof of Concept Evaluation."> <paragraph num="A."> <text>After receipt of proposals but before award of a procurement contract, a unit may:</text> <paragraph num="(1)"> <text>Conduct discussions with an offeror to ensure full understanding of</text> <paragraph num="(a)"> <text>The requirements of the unit, as set forth in the request for proposals; and</text> </paragraph> <paragraph num="(b)"> <text>The proposal submitted by the offeror; and</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Request product samples for testing by the unit or a demonstration of a product or service and use these samples or demonstrations in its evaluation process.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A request for product samples for testing or demonstration made under §A(2) of this regulation shall be issued to all offerors deemed reasonable at the time of the request.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Proof of Concept Award."> <text>A unit may award one or more of the proposals a contract for the proof of concept.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-102, 13-116, and 14-303, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: March 3, 2025 (52:4 Md. R. 221)</annotation> </annotations> </chapter> </subtitle> <subtitle num="06" heading="Contract Formation and Award"> <chapter num="01" heading="Qualification and Duties"> <regulation prefix="Regulation" num=".01" heading="Responsible and Responsive."> <paragraph num="A."> <text>If a procurement officer determines that a person is not a responsible bidder or offeror, or that the bid is nonresponsive, the procurement officer shall include that determination in the procurement file.</text> </paragraph> <paragraph num="B."> <text>A procurement officer may find that a person is not a responsible bidder or offeror for:</text> <paragraph num="(1)"> <text>Unreasonable failure to supply information promptly in connection with a determination of responsibility under this chapter; or</text> </paragraph> <paragraph num="(2)"> <text>Any other reason indicating that the person does not have:</text> <paragraph num="(a)"> <text>The capability in all respects to perform fully the contract requirements, or</text> </paragraph> <paragraph num="(b)"> <text>The integrity and reliability that will assure good faith performance.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Disclosure of Information."> <paragraph num="A."> <text>State Government Article, Title 10, Subtitle 6, shall govern any request for the disclosure of information related to a procurement.</text> </paragraph> <paragraph num="B."> <text>Confidential, proprietary information, and trade secrets furnished by a bidder or offeror under this chapter may be disclosed to another State agency only if there is a demonstrated need for the information and may not be disclosed outside of State government except as provided by State Government Article, Title 10, Subtitle 6, or as provided by this chapter.</text> </paragraph> <paragraph num="C."> <text>Duty Not to Disclose Information.</text> <paragraph num="(1)"> <text>After a solicitation for bids under COMAR 21.05.02 or for proposals under COMAR 21.05.03 or 21.12.02 — 21.12.05 is issued and until a procurement officer makes a recommendation for award of the contract, the procurement officer may disclose information only as set forth in COMAR 21.05.01.05.</text> </paragraph> <paragraph num="(2)"> <text>Before bid opening:</text> <paragraph num="(a)"> <text>Bids shall remain sealed; and</text> </paragraph> <paragraph num="(b)"> <text>The procurement officer may not disclose the name of any person who has submitted a bid.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Before a procurement officer makes a recommendation for award of the contract, a procurement officer may not disclose the name of any person who has submitted a proposal.</text> </paragraph> <paragraph num="(4)"> <text>Before awarding a procurement contract based on competitive sealed proposals, a procurement officer may not disclose the contents of a proposal to any person other than a person responsible for evaluating or reviewing the proposal, or approving the contract award, except as permitted by State Finance and Procurement Article, §13-105, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Duty to Disclose Information. Subject to the provisions of State Government Article, Title 10, Subtitle 6:</text> <paragraph num="(1)"> <text>A summary of the final evaluation of a proposal shall be open to public inspection;</text> </paragraph> <paragraph num="(2)"> <text>After an award, all proposals shall be open to public inspection; and</text> </paragraph> <paragraph num="(3)"> <text>At and after bid opening, the contents of a bid and any document submitted with the bid shall be open to public inspection.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Records of Evaluators. A procurement officer may deny public access to the advisory or deliberative records of any evaluator of a proposal if the records would not be available by law to a party in litigation.</text> </paragraph> <paragraph num="F."> <text>Discoverability During Proceedings. The provisions of this chapter do not affect the authority of the Board of Contract Appeals or a court of competent jurisdiction:</text> <paragraph num="(1)"> <text>To decide that information is discoverable in an administrative or judicial proceeding; and</text> </paragraph> <paragraph num="(2)"> <text>To compel disclosure of that information.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-202, 13-206, and 13-210, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended as an emergency provision effective April 7, 1989 (16:8 Md. R. 906); amended permanently effective June 26, 1989 (16:12 Md. R. 1338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended effective October 2, 2000 (27:19 Md. R. 1730); April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="02" heading="Cancellation and Rejection of IFBs and RFPs"> <regulation prefix="Regulation" num=".01" heading="Delegation of Authority."> <paragraph num="A."> <text>The Board hereby delegates to each Department head authority to approve cancellation of a solicitation or rejection of all bids or proposals for procurements within the Department's jurisdiction.</text> </paragraph> <paragraph num="B."> <text>When a Department acts as a procurement agency, the delegation in §A is not affected unless the Board directs otherwise.</text> </paragraph> <paragraph num="C."> <text>Actions taken by a Department pursuant to the delegation in §A shall be reported to the Board in accordance with COMAR 21.02.01.05B.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Cancellation of Invitations for Bids or Requests for Proposals."> <paragraph num="A."> <text>Notice. Each solicitation issued by a procurement agency shall state that the solicitation may be cancelled as provided in this regulation.</text> </paragraph> <paragraph num="B."> <text>Cancellation Before Opening.</text> <paragraph num="(1)"> <text>Before opening of bids or proposals, a solicitation may be cancelled in whole or in part when the procurement agency, with the approval of the appropriate Department head or designee, determines that this action is fiscally advantageous to the State or otherwise in its best interest. Reasons for cancellation include but are not limited to:</text> <paragraph num="(a)"> <text>The absence of a continued need for the procurement;</text> </paragraph> <paragraph num="(b)"> <text>When proposed amendments to the solicitation would be of such magnitude and substance that a new solicitation is desirable.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>When a solicitation is cancelled before bid or proposal opening, the bids or proposals shall be returned to the vendors submitting them and vendors shall be given notice of the cancellation. The notice of cancellation shall:</text> <paragraph num="(a)"> <text>Identify the solicitation;</text> </paragraph> <paragraph num="(b)"> <text>Briefly explain the reason for cancellation; and</text> </paragraph> <paragraph num="(c)"> <text>If appropriate, explain that opportunity will be given to compete on any resolicitation or any future procurements of a similar nature.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Rejection of All Bids or Proposals.</text> <paragraph num="(1)"> <text>After opening of bids or proposals but before award, all bids or proposals may be rejected in whole or in part when the procurement agency, with the approval of the appropriate Department head or designee, determines that this action is fiscally advantageous or otherwise in the State's best interest. Reasons for rejection of all bids or proposals include but are not limited to:</text> <paragraph num="(a)"> <text>The absence of a continued need for the procurement;</text> </paragraph> <paragraph num="(b)"> <text>The State agency no longer can reasonably expect to fund the procurement;</text> </paragraph> <paragraph num="(c)"> <text>Proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;</text> </paragraph> <paragraph num="(d)"> <text>Prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;</text> </paragraph> <paragraph num="(e)"> <text>There is reason to believe that the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith;</text> </paragraph> <paragraph num="(f)"> <text>Bids received indicate that the needs of the State agency can be satisfied by a less expensive equivalent item differing from that on which the bids or proposals were invited; or</text> </paragraph> <paragraph num="(g)"> <text>All otherwise acceptable bids or proposals received are at unreasonable prices.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A notice of rejection of all bids or proposals shall be sent to all vendors that submitted bids or proposals, and it shall conform to §B(2).</text> </paragraph> </paragraph> <paragraph num="D."> <text>Documentation. The determination of the reasons for cancellation or rejection of all bids or proposals shall be made a part of the procurement file.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Rejection of Individual Bids or Proposals."> <paragraph num="A."> <text>Notice in Solicitation. Each solicitation issued by a State agency shall provide that any bid or proposal may be rejected in whole or in part when it is in the best interest of the State to do so.</text> </paragraph> <paragraph num="B."> <text>Reasons for Rejection. Reasons for rejection of a bid or proposal include but are not limited to:</text> <paragraph num="(1)"> <text>The vendor that submitted the bid or proposal is not responsible as determined under COMAR 21.06.01.01;</text> </paragraph> <paragraph num="(2)"> <text>The bid is not responsive or the proposal is not reasonably susceptible of being selected for award;</text> </paragraph> <paragraph num="(3)"> <text>The price is unreasonable;</text> </paragraph> <paragraph num="(4)"> <text>The bidder or offeror is debarred or otherwise is ineligible for award and the period of debarment or ineligibility has not expired.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Minor Irregularities in Bids or Proposals."> <paragraph num="A."> <text>A minor irregularity is one which is merely a matter of form and not of substance or pertains to some immaterial or inconsequential defect or variation in a bid or proposal from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to other bidders or offerors.</text> </paragraph> <paragraph num="B."> <text>The defect or variation in the bid or proposal is immaterial and inconsequential when its significance as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the procurement.</text> </paragraph> <paragraph num="C."> <text>The procurement officer shall either give the bidder or offeror an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or proposal or waive the deficiency, whichever is to the advantage of the State.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Disposition of Bids or Proposals."> <text>When bids or proposals are rejected, or a solicitation is cancelled after bids or proposals have been received, the bids or proposals that have been opened shall be retained in the procurement file, and the bids or proposals that have not been opened shall be returned to the bidders or offerors upon request, or otherwise disposed of.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-206, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="03" heading="Types of Contracts and Multi-Year Contracts"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>Prohibition. Cost-plus-a-percentage-of-cost contracts and subcontracts are prohibited.</text> </paragraph> <paragraph num="B."> <text>Policy Regarding Selection of Contract Types.</text> <paragraph num="(1)"> <text>Subject to the prohibition in §A, any type of contract which shall promote the best interests of the State may be used. However, preference shall be given in the order indicated to the following types of contracts:</text> <paragraph num="(a)"> <text>Fixed-price;</text> </paragraph> <paragraph num="(b)"> <text>Fixed-price incentive;</text> </paragraph> <paragraph num="(c)"> <text>Cost plus incentive fee; and</text> </paragraph> <paragraph num="(d)"> <text>Cost-plus fixed fee or cost-reimbursement.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The objective when selecting a contract type is to obtain the best value in the time required and at the lowest cost or price or greatest revenue to the State. In order to achieve this objective, the procurement officer, before choosing a contract type, should review those elements of the procurement which directly affect the cost, time, risk, and profit incentives bearing on the performance.</text> </paragraph> <paragraph num="(3)"> <text>Among the factors to be considered in selecting any type of contract are:</text> <paragraph num="(a)"> <text>The type and complexity of the procurement;</text> </paragraph> <paragraph num="(b)"> <text>The difficulty of estimating performance costs such as the inability of the State to develop definitive specifications, to identify the risks to the contractor inherent in the nature of the work to be performed, or otherwise to establish clearly the requirements of the contract;</text> </paragraph> <paragraph num="(c)"> <text>The administrative costs to both parties;</text> </paragraph> <paragraph num="(d)"> <text>The degree to which the State shall provide technical coordination during the performance of the contract;</text> </paragraph> <paragraph num="(e)"> <text>The effect of the choice of the type of contract on the amount of competition to be expected;</text> </paragraph> <paragraph num="(f)"> <text>The stability of material or commodity market prices or wage levels;</text> </paragraph> <paragraph num="(g)"> <text>The urgency of the requirement; and</text> </paragraph> <paragraph num="(h)"> <text>The length of contract performance.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>Except for a firm fixed-price contract, no contract type may be used unless the procurement officer determines that the contractor's accounting system will permit timely development of all necessary cost data in the form required by the specific type of contract contemplated and that the contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting principles and that determination is approved by the appropriate Department.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Types of Fixed-Price Contracts."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>“Firm fixed-price contract” means a fixed price contract that provides a price that is not subject to adjustment because of variations in the contractor's cost.</text> </paragraph> <paragraph num="(2)"> <text>“Fixed-price contract” means a contract which places responsibility on the contractor for the delivery of the product or the complete performance of the services or construction in accordance with the contract terms at a price that may be firm or may be subject to contractually specified adjustments.</text> </paragraph> <paragraph num="(3)"> <text>“Fixed-price contract with price adjustment” means a fixed price contract that provides for variation in the contract price under special conditions defined in the contract, other than customary provisions authorizing price adjustments due to modifications.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Application.</text> <paragraph num="(1)"> <text>Fixed-Price Contract Generally. A fixed-price contract is appropriate for use when the extent and type of work necessary to meet State requirements can be reasonably specified and the cost can be reasonably estimated, as is generally the case for construction or standard commercial products. A fixed-price type of contract is the only type of contract that can be used in competitive sealed bidding.</text> </paragraph> <paragraph num="(2)"> <text>Firm Fixed-Price Contract. A firm fixed-price contract should be used whenever prices which are fair and reasonable to the State can be established at the outset. Bases upon which firm fixed prices may be established include:</text> <paragraph num="(a)"> <text>Adequate price competition for the contract;</text> </paragraph> <paragraph num="(b)"> <text>Comparison of prices in similar prior procurements in which prices were fair and reasonable;</text> </paragraph> <paragraph num="(c)"> <text>Establishment of realistic costs of performance by utilizing available cost or pricing data and identifying uncertainties in contract performance; or</text> </paragraph> <paragraph num="(d)"> <text>Use of other adequate means to establish a firm price.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Fixed-Price Contract with Price Adjustment. When a fixed-price contract with price adjustment is used, the formula or other basis by which the adjustment in contract price can be made shall be specified in the solicitation and the resulting contract. Adjustment allowed may be upward or downward only or both upward and downward. Examples of conditions under which adjustments may be provided in fixed-price contracts are:</text> <paragraph num="(a)"> <text>Changes in the contractor's labor agreement rates as applied to the industry or areawide;</text> </paragraph> <paragraph num="(b)"> <text>Changes due to rapid and substantial price fluctuations, which can be related to an accepted index;</text> </paragraph> <paragraph num="(c)"> <text>In requirements contracts, when a manufacturer's general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price) and that change affects the contractor.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Types of Cost-Reimbursement Contracts."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>“Cost contract” means a contract which provides for reimbursement for allowable costs but no fee.</text> </paragraph> <paragraph num="(2)"> <text>“Cost-plus fixed fee contract” means a contract which provides for reimbursement for allowable costs and in addition a fixed fee.</text> </paragraph> <paragraph num="(3)"> <text>“Cost-reimbursement contract” means a cost contract or a cost-plus fixed fee contract.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Application.</text> <paragraph num="(1)"> <text>Generally, a cost-reimbursement contract is appropriate when the uncertainties involved in contract performance are of such magnitude that the cost of contract performance cannot be estimated with sufficient certainty to realize economy by use of any type of fixed-price contract. A cost-reimbursement contract necessitates appropriate monitoring by State personnel during performance to give reasonable assurance that objectives are being met.</text> </paragraph> <paragraph num="(2)"> <text>Determinations. A cost-reimbursement contract may be used only when the procurement officer determines in writing that:</text> <paragraph num="(a)"> <text>This contract is likely to be less costly to the State than any other type or that it is impracticable to otherwise obtain the items of the kind or quality required except under such a contract;</text> </paragraph> <paragraph num="(b)"> <text>The proposed contractor's accounting system shall permit timely development of all necessary cost data in the form required by the specific contract type contemplated; and</text> </paragraph> <paragraph num="(c)"> <text>The proposed contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting principles.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Cost-reimbursement contracts shall provide that costs shall be reimbursed only if they are costs recognized as allowable and allocable under the cost principle regulations in Subtitle 09, or in the contract.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Each contractor under a cost-reimbursement type contract shall give notice and secure approval, as required by the contract, before entering into:</text> <paragraph num="(1)"> <text>A cost-reimbursement subcontract; or</text> </paragraph> <paragraph num="(2)"> <text>Any other subcontract involving more than $25,000, or 5 percent of the estimated cost of the prime contract. However, the cost-plus-a-percentage-of-cost system of contracting may not be used between contractors and subcontractors.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Types of Cost Incentive Contracts."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>“Cost-plus incentive fee” means a contract which provides for the reimbursement to the contractor of allowable costs incurred up to a ceiling amount and establishes a formula by which the contractor is rewarded for performing at less than target cost or is penalized if it exceeds target cost.</text> </paragraph> <paragraph num="(2)"> <text>“Fixed-price incentive contract” means a fixed-price contract in which the parties establish at the outset a target for performance and a formula by which the contractor is rewarded for exceeding performance and penalized if performance is not met.</text> </paragraph> <paragraph num="(3)"> <text>“Target” means the parties agreed best estimate.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Determinations.</text> <paragraph num="(1)"> <text>Before entering into any incentive contract, the procurement officer shall make a determination that the proposed contractor's accounting system shall permit timely development of all necessary cost data in the form required by the specific type of contract contemplated and that the contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting principles.</text> </paragraph> <paragraph num="(2)"> <text>Before entering any cost-plus incentive fee contract, the procurement officer shall make the additional determinations required under Regulation .03B(2)(a).</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Time and Material Contracts Labor Hour Contracts."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>“Labor hour contract” means a contract which only provides for the payment of labor performed.</text> </paragraph> <paragraph num="(2)"> <text>“Time and material contract” means a contract which provides an agreed basis for payment for materials supplied and labor performed.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Ceiling. Labor hour and time and material contracts shall state a dollar ceiling that may not be exceeded without the prior determination and approval of the procurement officer.</text> </paragraph> <paragraph num="C."> <text>Determinations. Labor hour and time and material contracts shall be entered into only after the procurement officer or designee determines that:</text> <paragraph num="(1)"> <text>State personnel have been assigned to closely monitor the performance of the work; and</text> </paragraph> <paragraph num="(2)"> <text>In the circumstances, it would not be practicable to use any other type of contract to obtain the needed items in the time required and at the lowest cost or price to the State.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Quantity Contracts Requirements Contracts."> <paragraph num="A."> <text>Definitions.</text> <paragraph num="(1)"> <text>“Definite quantity contract” means a fixed-price contract that provides for delivery of a specified amount of goods or labor either at specified times or when ordered.</text> </paragraph> <paragraph num="(2)"> <text>“Indefinite quantity contract” means a contract for an indefinite amount of goods or labor to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type.</text> </paragraph> <paragraph num="(3)"> <text>“Requirements contract” means an indefinite quantity contract for goods or labor that obligates the State to order all the actual requirements of designated using agencies during a specified period of time.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Application.</text> <paragraph num="(1)"> <text>Indefinite Quantity Contract. An approximate quantity or the best information available as to quantity shall be stated in the solicitation and the contract. The contract may provide a minimum quantity the State is obligated to order and may provide a maximum quantity that limits the State's obligation to order.</text> </paragraph> <paragraph num="(2)"> <text>Requirements Contracts. Requirements contracts shall include the following:</text> <paragraph num="(a)"> <text>A provision that requires the State to order its actual requirements of the goods or labor covered, provided, however, that the State may reserve in the solicitation and in the resulting contract the right to take bids separately if a particular quantity requirement arises that exceeds the State's normal requirements or an amount specified in the contract; and</text> </paragraph> <paragraph num="(b)"> <text>Two exemptions from ordering under the contract:</text> <paragraph num="(i)"> <text>When the procurement officer approves a finding that the goods or labor available under the contract may not meet a nonrecurring, special need of the State, or</text> </paragraph> <paragraph num="(ii)"> <text>Goods are produced or labor is performed incidental to the State's own programs, such as Maryland Correctional Enterprises, that can satisfy the need.</text> </paragraph> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Personal Property Leases."> <paragraph num="A."> <text>Definition. “Lease” means a contract for the use of supplies that are not owned by the State.</text> </paragraph> <paragraph num="B."> <text>Application. A lease may be entered into if:</text> <paragraph num="(1)"> <text>It is in the best interest of the State;</text> </paragraph> <paragraph num="(2)"> <text>All conditions for renewal and costs of termination are set forth in the lease; and</text> </paragraph> <paragraph num="(3)"> <text>The lease is not used to circumvent normal procurement procedures.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Lease with Purchase Option."> <paragraph num="A."> <text>A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding, competitive sealed proposals, or competitive small procurement procedures, or the leased supply or facility is the only supply or facility that can meet the State's requirements, as determined in writing by the agency head.</text> </paragraph> <paragraph num="B."> <text>Before exercising the option, the procurement officer shall:</text> <paragraph num="(1)"> <text>Investigate alternative means of procuring comparable supplies;</text> </paragraph> <paragraph num="(2)"> <text>Compare estimated costs and benefits associated with the alternative means and the exercise of the option; and</text> </paragraph> <paragraph num="(3)"> <text>Obtain review and approval of the appropriate Department.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Multi-Year Contracts."> <paragraph num="A."> <text>Application. A multi-year contract is appropriate when it is in the best interest of the State to obtain uninterrupted services extending over more than one fiscal period, when the performance of the services involves high start-up costs, or when a changeover of services contractors involves high phase-in/phase-out costs during a transition period. The multi-year method of contracting is also appropriate when special production of definite quantities of supplies for more than one fiscal period is necessary to best meet the State needs but funds are available only for the initial fiscal period.</text> </paragraph> <paragraph num="B."> <text>Objective. The objective of the multi-year contract is to promote economy and efficiency in procurement by obtaining the benefits of sustained volume production and consequent low prices, and by increasing competitive participation in procurements which involve special production or high phase-in/phase-out costs during changeover of service contractors.</text> </paragraph> <paragraph num="C."> <text>Conditions for Use of Multi-year Contracts. A multi-year contract may be used when it is determined by the procurement officer that:</text> <paragraph num="(1)"> <text>Special production of definite quantities or the furnishing of long-term services are required to meet State needs;</text> </paragraph> <paragraph num="(2)"> <text>Estimated requirements cover the period of the contract and are reasonably firm and continuing; and</text> </paragraph> <paragraph num="(3)"> <text>A multi-year contract shall serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement. The following factors are among those relevant to this determination:</text> <paragraph num="(a)"> <text>Firms which are not willing or able to compete because of high start-up costs or capital investment in facility expansion shall be encouraged to participate in the competition when they are assured of recouping these costs during the period of contract performance;</text> </paragraph> <paragraph num="(b)"> <text>Lower production costs because of larger quantity or service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;</text> </paragraph> <paragraph num="(c)"> <text>Stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or</text> </paragraph> <paragraph num="(d)"> <text>The cost and burden of contract solicitation, award, and administration of the procurement may be reduced.</text> </paragraph> </paragraph> </paragraph> <paragraph num="D."> <text>Multi-year Contract Procedure.</text> <paragraph num="(1)"> <text>Solicitation. The solicitation shall state:</text> <paragraph num="(a)"> <text>The amount of supplies or services required for the proposed contract period;</text> </paragraph> <paragraph num="(b)"> <text>That a unit price shall be given for each supply or service, and that these unit prices shall be the same throughout the contract (except to the extent price adjustments may be provided in the solicitation and resulting contract);</text> </paragraph> <paragraph num="(c)"> <text>That the multi-year contract shall be cancelled automatically if funds are not appropriated or otherwise made available to support continuation of performance in any fiscal period succeeding the first; however, this does not affect either the State's rights or the contractor's rights under any termination clause in the contract;</text> </paragraph> <paragraph num="(d)"> <text>That the procurement officer shall notify the contractor on a timely basis that the funds are, or are not, available for the continuation of the contract for each succeeding fiscal period;</text> </paragraph> <paragraph num="(e)"> <text>Whether bidders or offerors may submit prices for:</text> <paragraph num="(i)"> <text>The first fiscal period only,</text> </paragraph> <paragraph num="(ii)"> <text>The entire time of performance only, or</text> </paragraph> <paragraph num="(iii)"> <text>Both the first fiscal period and the entire time of performance;</text> </paragraph> </paragraph> <paragraph num="(f)"> <text>That a multi-year contract may be awarded and how prices shall be determined, if prices for the first fiscal period and entire time of performance are submitted;</text> </paragraph> <paragraph num="(g)"> <text>That the effect of termination is to discharge both parties from future performance of the contract, but not from their existing obligations. The contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the supplies or services delivered under the contract.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Award. Award shall be made as stated in the solicitation and permitted under the procurement method utilized.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Multiple Awards."> <text>When a multiple award is made, all State agencies shall order all of their actual normal requirements for the specified supplies or services from contractors awarded the contract. A multiple award may be in the State's best interest when an award to two or more bidders or offerors for similar products is needed for adequate delivery, service, availability, or for product compatibility. In making a multiple award, care shall be exercised to protect and promote the principles of competitive solicitation. Multiple awards may not be made when a single award will meet the State's needs without sacrifice of economy or service.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-213—13-215, and 13-217, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B amended effective March 13, 2006 (33:5 Md. R. 523)</annotation> </annotations> </chapter> <chapter num="04" heading="Cost or Price Requirements"> <regulation prefix="Regulation" num=".01" heading="Submission of Information."> <text>Each contractor shall submit cost or price information and shall certify that, to the best of the contractor's knowledge, the information submitted is accurate, complete, and current as of the mutually determined specified date before the date the price of any:</text> <paragraph num="A."> <text>Negotiated contract is determined, if the total contract price is expected to exceed $100,000 or a smaller amount set by the procurement officer; or</text> </paragraph> <paragraph num="B."> <text>Change order or contract modification is determined when it is expected to exceed $100,000 or a smaller amount set by the procurement officer.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Cost and Price Certificate."> <text>Every contract, change order, or modification under which a cost and price certificate is required shall contain a provision that the price, including profit or fee, shall be adjusted to exclude any significant price increases occurring because the contractor furnished cost or price information which, as of the date agreed upon between the parties, was inaccurate, incomplete, or not current. The specific contract clause is contained in COMAR 21.07.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Exemption."> <text>This chapter does not apply to a lease of real property, an amendment to a lease of real property, or a contract for which the price negotiated is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-220, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="05" heading="Plant Inspection, Audit and Retention of Records"> <regulation prefix="Regulation" num=".01" heading="Right to Inspect."> <text>Designees of the procurement agency, the Department of Legislative Services, or any other State unit authorized by law, may inspect at reasonable times the plant, place of business, or jobsite of any bidder or offeror, contractor, prospective subcontractor or assignee, or subcontractor or assignee.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Audits."> <paragraph num="A."> <text>Audit of Cost or Pricing Data. Designees of the procurement agency, the Department of Legislative Services, or any other State unit authorized by law may audit during the record retention period the books and records of any person who has submitted cost or pricing data to the extent that the books and records relate to the cost or pricing data.</text> </paragraph> <paragraph num="B."> <text>Contract Audit. Designees of the procurement agency, the Department of Legislative Services, or any other State unit authorized by law shall be entitled to audit the books and records of a contractor or any subcontractor under any negotiated contract or subcontract other than a firm fixed-price contract to the extent that the books and records relate to the performance of the contract or subcontract, or if the agency has reason to believe, from an audit of a cost type contract, that costs have been inappropriately assigned to a cost type contract from a fixed price contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Record Retention."> <text>The contractor or subcontractor shall maintain books and records that relate to the cost or pricing data for 3 years from the date of final payment under the contract, unless a longer period is otherwise specified in the contract.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 15-108, and 15-109, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="06" heading="Retainage"> <regulation prefix="Regulation" num=".01" heading="Construction Contract Retainage."> <paragraph num="A."> <text>This regulation applies to a construction contract for which a contractor has furnished 100 percent payment security and 100 percent performance security.</text> </paragraph> <paragraph num="B."> <text>The percent for retainage specified in a contract under §A of this regulation may not exceed 5 percent of the contract amount.</text> </paragraph> <paragraph num="C."> <text>In addition to retainage, a primary procurement unit and the Maryland Transportation Authority may withhold from payments otherwise due a contractor an amount that the unit reasonably believes is necessary to protect the State's interest.</text> </paragraph> <paragraph num="D."> <text>A contractor may not retain from a payment due a subcontractor a percent of the payment greater than the percent for retainage retained by the primary procurement unit or the Maryland Transportation Authority.</text> </paragraph> <paragraph num="E."> <text>A subcontractor may not retain from a payment due a lower-tier subcontractor a percent of the payment greater than the percent of payments retained from the subcontractor.</text> </paragraph> <paragraph num="F."> <text>A contractor and a subcontractor are not prohibited, by §§D and E of this regulation, from withholding an amount in addition to retainage if the contractor or subcontractor determines that a subcontractor's performance under the subcontract provides reasonable grounds for withholding the additional amount.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Escrow of Retainage."> <paragraph num="A."> <text>This regulation applies to all construction contracts unless:</text> <paragraph num="(1)"> <text>The contract is funded in whole or in part with tax-exempt financing; or</text> </paragraph> <paragraph num="(2)"> <text>It conflicts with any federal grant or regulation affecting the contract.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The invitation for bids, request for proposals, or the contract documents to be executed by a contractor shall include a form on which the contractor may elect to have retainage placed in an escrow account.</text> </paragraph> <paragraph num="C."> <text>A contractor's election on the use of an escrow account for retainage is not revocable.</text> </paragraph> <paragraph num="D."> <text>A contractor awarded a construction contract may elect to have retainage placed in an escrow account if the contractor:</text> <paragraph num="(1)"> <text>Elects that procedure on the form provided by the procurement agency; and</text> </paragraph> <paragraph num="(2)"> <text>Submits with the contract documents the escrow agreement provided by the procurement agency, executed by the contractor, the escrow agent, and, if applicable, the surety.</text> </paragraph> </paragraph> <paragraph num="E."> <text>The contractor shall select an escrow agent from among the banks approved by the State Treasurer for use by State agencies.</text> </paragraph> <paragraph num="F."> <text>The contractor is liable to the escrow agent for the payment of fees and charges in connection with the establishment and maintenance of the escrow account.</text> </paragraph> <paragraph num="G."> <text>Funds, other than retainage, withheld by the procurement agency, may not be paid to the escrow agent.</text> </paragraph> <paragraph num="H."> <text>Retained funds may be released only as directed by the procurement agency.</text> </paragraph> <paragraph num="I."> <text>At the time of final payment, the procurement agency shall direct the escrow agent to settle the escrow account by paying funds from the escrow account:</text> <paragraph num="(1)"> <text>To the procurement agency for any claim it may have against the contractor under the contract;</text> </paragraph> <paragraph num="(2)"> <text>Unless waived by the Board of Public Works, to the Comptroller for any claim over $50 against the contractor by the State, a unit, or a State-controlled governmental agency; and</text> </paragraph> <paragraph num="(3)"> <text>To the contractor.</text> </paragraph> </paragraph> <paragraph num="J."> <text>Until the escrow agent makes payment as directed, funds in the escrow account are State funds and are not subject to any liens.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-225, and 15-108, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 9, 2001 (28:13 Md. R. 1216)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01C, D amended effective April 11, 2005 (32:7 Md. R. 685)</annotation> </annotations> </chapter> <chapter num="07" heading="Bid and Contract Security/Bonds"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>Nothing contained in this chapter prevents a procurement officer from requiring performance or payment bonds, or both, on supply, service, maintenance, or construction-related service contracts if the contract is expected to exceed $100,000.</text> </paragraph> <paragraph num="B."> <text>Acceptable security for bid, performance, and payment bonds is limited to:</text> <paragraph num="(1)"> <text>A bond in a form satisfactory to the State underwritten by a surety company authorized to do business in this State;</text> </paragraph> <paragraph num="(2)"> <text>A bank certified check, bank cashier's check, bank treasurer's check, cash, or trust account;</text> </paragraph> <paragraph num="(3)"> <text>Pledge of securities backed by the full faith and credit of the United States government or bonds issued by the State;</text> </paragraph> <paragraph num="(4)"> <text>An irrevocable letter of credit in a form satisfactory to the Attorney General and issued by a financial institution approved by the State Treasurer; or</text> </paragraph> <paragraph num="(5)"> <text>For performance security on construction contracts, the grant of a mortgage or deed of trust on real property located in the State when:</text> <paragraph num="(a)"> <text>Satisfactory to the procurement officer,</text> </paragraph> <paragraph num="(b)"> <text>The face amount of the instrument does not exceed 75 percent of the contractor's equity interest in the property, and</text> </paragraph> <paragraph num="(c)"> <text>The assignment of the mortgage or deed of trust is recorded in the county land records pursuant to Real Property Article, §3-103, Annotated Code of Maryland.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>When a vendor or contractor elects to use cash as security for bid, performance, and payment bonds, the following procedural requirements shall be observed:</text> <paragraph num="(1)"> <text>The General Accounting Division of the Office of the Comptroller of the Treasury shall be contacted and an appointment made with the head of the General Accounting Division or the head's designee to deliver the cash security;</text> </paragraph> <paragraph num="(2)"> <text>An authorized representative of the vendor or contractor shall hand deliver the cash security to the head of the General Accounting Division or the head's designee;</text> </paragraph> <paragraph num="(3)"> <text>An indication of the solicitation or contract number, description of the contract, date of bid/proposal opening, and the name of the contracting agency shall be submitted with the cash security;</text> </paragraph> <paragraph num="(4)"> <text>The cash security shall be counted publicly in the presence of at least two State employees of the General Accounting Division and the authorized representative of the vendor or contractor; and</text> </paragraph> <paragraph num="(5)"> <text>The acceptance of the cash security shall be acknowledged by a written receipt signed by the head of the General Accounting Division or the head's designee, the two employees witnessing the transaction and the vendor/contractor representative witnessing the amount of cash counted. In the case of bid bonds, the written receipt issued by the General Accounting Division shall be included in the vendor's bid package at the time of public opening of bids.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Except as provided in §§B and D(3) of Regulation .09 of this chapter, failure of vendors to comply with these procedures regarding bid bonds will result in the determination by the procurement officer that the bid is nonresponsive.</text> </paragraph> <paragraph num="E."> <text>Bid or contract security submitted in the form of cash shall be invested by the State Treasurer and the proceeds of any interest earned by this investment shall accrue to the State of Maryland, General Fund, and may not be credited to the account of the vendor/contractor.</text> </paragraph> <paragraph num="F."> <text>Any of the forms of security listed in §B of this regulation are permitted unless otherwise stated in the solicitation. Solicitations that require bid security shall include notice to all bidders that bid security shall be in a form of security authorized by this chapter.</text> </paragraph> <paragraph num="G."> <text>Nothing in this chapter requires the procurement officer to accept a nonresponsive bid.</text> </paragraph> <paragraph num="H."> <text>If a prime contractor on a State contract requires a subcontractor to provide a bid, performance, or payment bond on a procurement contract for services, supplies, or construction-related services, the prime contractor may not require bid, performance, or payment bonding from the subcontractor that is more stringent than the bonding requirements of this chapter.</text> </paragraph> <paragraph num="I."> <text>A bid, performance, or payment bond that is provided by a subcontractor shall be accepted by the prime contractor on a State contract if the bond would be acceptable to the State and provided by:</text> <paragraph num="(1)"> <text>A surety company authorized to do business in the State; or</text> </paragraph> <paragraph num="(2)"> <text>The Maryland Small Business Development Financing Authority.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Submission of Individual Surety Bonds — Repealed" /> <regulation prefix="Regulation" num=".03" heading="Acceptability of Individual Sureties — Repealed" /> <regulation prefix="Regulation" num=".04" heading="Security Interests by an Individual Surety — Repealed" /> <regulation prefix="Regulation" num=".05" heading="Acceptability of Assets — Repealed" /> <regulation prefix="Regulation" num=".06" heading="Unacceptable Assets — Repealed" /> <regulation prefix="Regulation" num=".07" heading="Acceptance of Real Property — Repealed" /> <regulation prefix="Regulation" num=".08" heading="Acceptance of Personal Property — Repealed" /> <regulation prefix="Regulation" num=".09" heading="Bid Security."> <paragraph num="A."> <text>General.</text> <paragraph num="(1)"> <text>Solicitations on all State construction contracts when the contract is expected to exceed $100,000 require the submission of bid security in an amount equal to at least 5 percent of the amount of the bid or price proposal except that, for bids stating a rate but not a total cost, the bid bond shall be in an amount as determined by the procurement officer. Bid security or evidence of the posting of bid security shall be submitted with the bid or proposal. Bid bonds may be required for any other procurement over $50,000, as determined by the procurement officer. If a contractor fails to accompany its bid with the required bid security, the bid shall be considered nonresponsive and rejected except as provided by §§B and D of this regulation.</text> </paragraph> <paragraph num="(2)"> <text>A procurement officer may require a bid security for a bid or proposal for services, supplies, maintenance, or construction-related services if the contract is expected to exceed $50,000. The procurement officer shall set the amount of the security.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Failure to Comply. If bid security is provided by a bidder in an amount less than that required by this regulation, the bid shall be rejected as nonresponsive, unless the procurement officer determines that the deficiency in the amount of security provided is insubstantial and acceptance is in the best interests of the State, and that:</text> <paragraph num="(1)"> <text>Only one bid or proposal was received, and there is insufficient time to rebid the contract;</text> </paragraph> <paragraph num="(2)"> <text>The bid security became inadequate as a result of the correction of a mistake in the bid or proposal, or as a result of a modification in the bid or proposal in accordance with applicable regulations, and the bidder or offeror increased the amount of bid security to required limits within 48 hours after the correction or modification; or</text> </paragraph> <paragraph num="(3)"> <text>After consideration of the risks involved and the difference between the lowest bid and the next lowest bid, fiscal advantage could reasonably be expected to accrue to the State from acceptance of the lowest bid.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Withdrawal of Bid or Proposal Before Award. If a bidder or offeror is permitted to withdraw a bid or proposal before award because of a mistake in the bid or proposal, action may not be taken against the bid security. Otherwise, action may be taken against the bid security of a bidder or offeror that withdraws a bid or offer.</text> </paragraph> <paragraph num="D."> <text>Forms of Bid Bonds.</text> <paragraph num="(1)"> <text>The preferred form of a bid bond is as follows:</text> </paragraph> <paragraph num="(2)"> <text>Unless prohibited by the solicitation, a bid bond on a form other than the preferred form under §D(1) of this regulation may be accepted if the form provides that the principal and the surety shall be liable under the bond in an amount at least equal to the difference between the amount of the principal's bid and such other amount or amounts for which the obligee may contract with another party to perform as required by the solicitation for which the principal's bid was submitted.</text> </paragraph> <paragraph num="(3)"> <text>Extensions of Time for Acceptance of Bid.</text> <paragraph num="(a)"> <text>In this subsection, “acceptance period” means the period during which bids remain irrevocable as provided in the solicitation or in COMAR 21.05.02.19A.</text> </paragraph> <paragraph num="(b)"> <text>If a solicitation requires a bid bond to contain consent of the surety to an extension of the acceptance period and the bid bond fails to meet that requirement, the bid:</text> <paragraph num="(i)"> <text>May not be rejected as nonresponsive on that basis alone during the acceptance period; and</text> </paragraph> <paragraph num="(ii)"> <text>Shall be rejected as nonresponsive if written consent to an extension has not been provided by the bidder and the surety during the acceptance period or an additional period of time set by the procurement officer which is approved by the head of the procurement agency.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(4)"> <text>Authenticity and Enforceability of Powers of Attorney.</text> <paragraph num="(a)"> <text>Any person signing a bid bond as an attorney-in-fact shall include with the bid bond evidence of authority to bind the surety.</text> </paragraph> <paragraph num="(b)"> <text>An original, or a photocopy or facsimile of an original, power of attorney is sufficient evidence of such authority.</text> </paragraph> <paragraph num="(c)"> <text>For purposes of this section, verified electronic, mechanically-applied and printed signatures, seals and dates on the power of attorney shall be considered original signatures, seals and dates, without regard to the order in which they were affixed.</text> </paragraph> <paragraph num="(d)"> <text>The procurement officer shall:</text> <paragraph num="(i)"> <text>Treat the failure to provide a signed and dated power of attorney at the time of bid opening as a matter of responsiveness; and</text> </paragraph> <paragraph num="(ii)"> <text>Treat questions regarding the authenticity and enforceability of the power of attorney at the time of bid opening as a matter of responsibility. These questions are handled after bid opening.</text> </paragraph> </paragraph> <paragraph num="(e)"> <text>If the procurement officer contacts the surety to validate the power of attorney, the contracting officer shall document the file providing, at a minimum, the following information:</text> <paragraph num="(i)"> <text>Name of person contacted;</text> </paragraph> <paragraph num="(ii)"> <text>Date and time of contact; and</text> </paragraph> <paragraph num="(iii)"> <text>Response of the surety.</text> </paragraph> </paragraph> <paragraph num="(f)"> <text>If, upon investigation, the surety declares the power of attorney to have been valid at the time of bid opening, the procurement officer may require correction of any technical error with the power of attorney.</text> </paragraph> <paragraph num="(g)"> <text>If, upon investigation, the surety declares the power of attorney to have been invalid, the procurement officer shall determine the bid to be nonresponsive and not allow the bidder to substitute a replacement power of attorney or a replacement surety.</text> </paragraph> </paragraph> <aftertext>BID BOND</aftertext> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Performance and Payment Bonds."> <paragraph num="A."> <text>Performance Bonds.</text> <paragraph num="(1)"> <text>General. A performance bond is required for all construction contracts in excess of $100,000 in the amount equal to at least 100 percent of the contract price. A performance bond may be required for a contract for services, supplies, maintenance, or construction-related services expected to exceed $100,000, as determined by the procurement officer. The performance bond shall be delivered by the contractor to the State not later than the time the contract is executed. If a contractor fails to deliver the required performance bond, the contractor’s bid shall be rejected, its bid security shall be enforced, and award of the contract may be made to the next lowest responsive and responsible bidder.</text> </paragraph> <paragraph num="(2)"> <text>Reduction of Amount Before Solicitation. The head of a procurement agency may reduce the amount of the performance bond required before solicitation if, after completing appropriate analysis, it is determined in writing by the head of a procurement agency to be less costly or more advantageous to the State to self-insure a part of the performance of the contractor. An analysis may be made for groups of contracts, or may be made on particular contracts, as the head of a procurement agency chooses. A copy of the analysis shall be available for public inspection.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Payment Bonds.</text> <paragraph num="(1)"> <text>General. A payment bond is required for all construction contracts in excess of $100,000 in the amount equal to at least 100 percent of the contract price. The payment bond shall be delivered by the contractor to the State not later than the time the contract is executed. If a contractor fails to deliver the required payment bond, the contractor's bid shall be rejected, its bid security shall be enforced, and award of the contract shall be made to the next lowest responsive and responsible bidder.</text> </paragraph> <paragraph num="(2)"> <text>Reduction of Amount Before Solicitation. Before solicitation, the head of a procurement agency may reduce the amount of the payment bond to not less than 50 percent of the contract price if a written determination is made that it is in the best interest of the State to do so. Factors to be considered in order to make the determination include, but are not limited to:</text> <paragraph num="(a)"> <text>The value and number of subcontracts to be awarded by the contractor; and</text> </paragraph> <paragraph num="(b)"> <text>The value of the contract.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Forms for Performance and Payment Bonds. The required performance and payment bonds shall be in the form specified in COMAR 21.07.02.10.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Federal Requirements."> <text>To the extent required by federal law or the conditions governing federally assisted procurements, bid, performance, or payment securities are governed by the federal requirements, notwithstanding Regulations .01—.10 of this chapter.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-207—13-209, 13-216, and 17-102—17-109, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01A, .02A, and .03A, B amended effective May 6, 1985 (12:9 Md. R. 816)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended as an emergency provision effective March 17, 1982 (9:6 Md. R. 612); emergency status expired June 30, 1982; adopted permanently effective July 5, 1982 (9:13 Md. R. 1354)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective May 20, 1996 (23:10 Md. R. 733)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective May 20, 1996 (23:10 Md. R. 733); January 26, 1998 (25:2 Md. R. 80)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01D amended and F adopted effective October 14, 2002 (29:20 Md. R. 1590)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective May 20, 1996 (23:10 Md. R. 733); October 14, 2002 (29:20 Md. R. 1590)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended and D adopted effective October 14, 2002 (29:20 Md. R. 1590)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A, B amended effective May 20, 1996 (23:10 Md. R. 733)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective October 14, 2002 (29:20 Md. R. 1590)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 adopted effective May 20, 1996 (23:10 Md. R. 733)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised as an emergency provision effective March 31, 2007 (34:9 Md. R. 824); revised permanently effective July 16, 2007 (34:14 Md. R. 1246)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01C amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01F amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01H, I adopted effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulations .02—.08 repealed effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09D amended effective March 16, 2015 (42:5 Md. R. 488); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10A amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> </annotations> </chapter> <chapter num="08" heading="Inspection, Acceptance, Replacements, Revocation, and Rejection"> <regulation prefix="Regulation" num=".01" heading="Inspection."> <paragraph num="A."> <text>Right to Inspect. The procurement agency may, before payment or acceptance, inspect at the time and the place of delivery labor performed or goods delivered pursuant to the contract.</text> </paragraph> <paragraph num="B."> <text>Right to Reject and Notice of Rejection.</text> <paragraph num="(1)"> <text>The procurement agency shall inform the contractor of rejection of labor or goods within a reasonable time after delivery. The contractor shall be responsible for the labor or goods so rejected and any expenses once a rejection occurs. The procurement agency shall assume no responsibility for rejected labor or goods. After inspection, the procurement agency may, at its option:</text> <paragraph num="(a)"> <text>Return rejected goods to the contractor and forward along with the damaged goods the consignee's copy of the bill, if any, and the inspection report;</text> </paragraph> <paragraph num="(b)"> <text>Request removal of the goods; or</text> </paragraph> <paragraph num="(c)"> <text>Reject labor performed.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If the contractor fails to remove rejected items from the using agency's premises within a reasonable time, the procurement agency may take any action it deems appropriate, including but not limited to:</text> <paragraph num="(a)"> <text>Store the items at the contractor's expense;</text> </paragraph> <paragraph num="(b)"> <text>Reship them to the contractor and charge the contractor's account;</text> </paragraph> <paragraph num="(c)"> <text>Resell the items and retain a reasonable amount for its expenses.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Revocation of Acceptance.</text> <paragraph num="(1)"> <text>The procurement agency may revoke its acceptance of any labor or goods:</text> <paragraph num="(a)"> <text>That do not conform to the contract and that non-conformity reasonably impairs their value; or</text> </paragraph> <paragraph num="(b)"> <text>The acceptance of which assumed that the non-conformity would be cured within a reasonable time and this has not been accomplished.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A revocation of acceptance shall constitute a rejection. The procurement agency shall send the contractor notification of revocation of acceptance within a reasonable time. The contractor shall deliver to the procurement agency instructions for the return of the items. The procurement agency may, if the contractor fails to provide shipping instructions, take any action it deems appropriate, including but not limited to:</text> <paragraph num="(a)"> <text>Store the items at the contractor's expense;</text> </paragraph> <paragraph num="(b)"> <text>Reship the items at contractor's expense;</text> </paragraph> <paragraph num="(c)"> <text>Resell the items and retain a reasonable amount from the sale price to cover its expenses.</text> </paragraph> </paragraph> </paragraph> <paragraph num="D."> <text>Risk of Loss.</text> <paragraph num="(1)"> <text>If the contract requires or authorizes the contractor to ship the items by a particular carrier, and requires delivery only to the carrier, then the risk of loss passes to the procurement agency when conforming goods are duly delivered to the carrier.</text> </paragraph> <paragraph num="(2)"> <text>If the contract requires the contractor to deliver the items to a particular destination, and conforming items are so delivered, the risk of loss passes to the procurement agency only upon the arrival of the items at that destination.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Reservation of Rights. Nothing contained in this chapter shall be construed in any way to limit the rights of the State under any law, including the Commercial Law Article, which may be applicable to any transaction governed by these regulations.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Inspection and Testing of Supplies and Services."> <paragraph num="A."> <text>Solicitation Provisions. Contracts may provide that the State may inspect labor or goods at the contractor's or subcontractor's facility and perform tests to determine whether they conform to solicitation requirements, or, after award, to contract requirements, and may be accepted. The inspections and tests shall be conducted in accordance with the terms of the solicitation or the contract.</text> </paragraph> <paragraph num="B."> <text>Procedures for Trial Use and Testing. The procurement officer may establish operational procedures governing the testing and trial use of labor or goods and the application of resulting information and data to specifications or procurements.</text> </paragraph> <paragraph num="C."> <text>Conduct of Inspections.</text> <paragraph num="(1)"> <text>Inspectors. Inspections or tests shall be performed so as not to unduly delay the work of the contractor or subcontractor. No inspector other than the procurement officer may change any provision of the specifications or the contract without written authorization. The presence or absence of an inspector does not relieve the contractor or subcontractor from any requirements of the contract.</text> </paragraph> <paragraph num="(2)"> <text>Location. When an inspection is made in the plant or place of business of a contractor or subcontractor, the contractor or subcontractor shall provide, without charge, all reasonable facilities and assistance for the safety and convenience of the person or persons performing the inspection or testing.</text> </paragraph> <paragraph num="(3)"> <text>Time. Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor shall be performed at reasonable times.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> <chapter num="09" heading="Invoicing, Payment, and Interest on Late Payments"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Late payment” means any amount that is due and payable by law under a written procurement contract, without deferral, delay, or set-off under COMAR 21.02.07.03, and remains unpaid more than 37 days after an agency receives a proper invoice.</text> </paragraph> <paragraph num="(2)"> <text>“Payment” includes all required processing and authorization by the Comptroller of the Treasury, as provided under COMAR 21.02.07, and may be deferred, delayed, or set-off as applicable under COMAR 21.02.07.03.</text> </paragraph> <paragraph num="(3)"> <text>“Proper invoice” means a bill, written document, or electronic transmission, readable by the agency, provided by a vendor requesting an amount that is due and payable by law under a written procurement contract for property received or services rendered that meets the requirements of Regulation .02 of this chapter.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Required Invoice Documentation."> <text>A Proper invoice, required as payment documentation, must include the following information, without error:</text> <paragraph num="A."> <text>The contractor’s federal employer’s identification number or Social Security number;</text> </paragraph> <paragraph num="B."> <text>The procurement contract or purchase order number or another adequate description of the procurement contract; and</text> </paragraph> <paragraph num="C."> <text>Any documentation required by regulation or the procurement contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Receipt of Invoices."> <text>For the purposes of determining a payment due date and the date on which interest will begin to accrue if a payment is late, an invoice shall be deemed to be received:</text> <paragraph num="A."> <text>For invoices that are mailed, when a proper invoice is received by the agency, as of the date the agency annotates the invoice with the date and time of receipt; or</text> </paragraph> <paragraph num="B."> <text>For invoices electronically transmitted, on the date the transmission is received by the agency, or the next business day if received after 5 p.m. Eastern Time.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Review of Invoices."> <text>Upon receipt of an invoice, an agency shall use the following procedures:</text> <paragraph num="A."> <text>Each invoice will be reviewed by the agency as soon as practicable after receipt, but no later than 5 business days after receipt, to determine whether the invoice is a proper invoice as defined in Regulation .01 of this chapter.</text> </paragraph> <paragraph num="B."> <text>When the agency receives the invoice, the agency shall mark the invoice with the date the invoice was received.</text> </paragraph> <paragraph num="C."> <text>Once the agency determines the invoice is proper, the agency shall submit the invoice to the Comptroller for payment within one business day after the determination.</text> </paragraph> <paragraph num="D."> <text>If an agency determines the invoice is not a proper invoice, the agency shall notify the vendor of all defects that prevent processing and specify all reasons why the invoice is not proper within two business days after the determination. It is the responsibility of the vendor to submit a corrected invoice.</text> </paragraph> <paragraph num="E."> <text>Media which produce tangible recordings of information may be used by agencies to expedite the payment process, rather than delaying the process by requiring original paper documents. Agencies shall provide adequate safeguards and controls to ensure the integrity of the data and to prevent duplicate processing.</text> </paragraph> <paragraph num="F."> <text>Failure to comply with this regulation does not constitute a late payment as that term is defined in this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Payment Period."> <paragraph num="A."> <text>Unless payment is deferred, delayed, or set-off under COMAR 21.02.07.03, payment under a procurement contract shall be made within 30 days:</text> <paragraph num="(1)"> <text>After the day on which the payment becomes due under the procurement contract; or</text> </paragraph> <paragraph num="(2)"> <text>If later, after the day on which the agency receives a proper invoice.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Payment will be considered to be made on the settlement date for an electronic funds transfer payment or the mailing date of the check for a check payment.</text> </paragraph> <paragraph num="C."> <text>Payments falling due on a weekend, State holiday, or federal holiday may be made on the following business day without incurring late payment interest penalties.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Interest on Late Payments."> <paragraph num="A."> <text>The State shall pay interest on late payments as defined in Regulation .01 of this chapter at the rate of 9 percent per annum if:</text> <paragraph num="(1)"> <text>The vendor submits an invoice for the late payment interest within 30 days after the date of the State’s payment of the amount on which the interest accrued; and</text> </paragraph> <paragraph num="(2)"> <text>A contract claim has not been filed under State Finance and Procurement Article, Title 15, Subtitle 2, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The State is not liable for interest:</text> <paragraph num="(1)"> <text>Accruing more than one year after the 31st day after the agency receives the proper invoice; or</text> </paragraph> <paragraph num="(2)"> <text>On any amount representing unpaid interest.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§15-101—15-105, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> </annotations> </chapter> </subtitle> <subtitle num="07" heading="Contract Terms and Conditions"> <chapter num="01" heading="Mandatory Contract Provisions — All Contracts (except as provided under COMAR 21.05.07, 21.07.02, and 21.07.03)"> <regulation prefix="Regulation" num=".01" heading="Parties to the Contract."> <text>Mandatory provision for all contracts.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Scope of Contract."> <text>Mandatory provision for all contracts. This provision shall reflect the unilateral right of the State to order in writing changes in the work within the scope of the contract.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Compensation and Method of Payment."> <text>Mandatory provision for all contracts. The contractor's taxpayer identification number consisting of the Social Security number for individuals and sole proprietors and the federal employer identification number for all other types of organizations shall be indicated in this clause.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Contract Modifications."> <text>Mandatory provision for all contracts.</text> </regulation> <regulation prefix="Regulation" num=".05" heading="Non-Hiring of Officials and Employees."> <text>Mandatory provision for all contracts: “No official or employee of the State of Maryland, as defined under General Provisions Article, §5-101, Annotated Code of Maryland, whose duties as such official or employee include matters relating to or affecting the subject matter of this contract, shall during the pendancy and term of this contract and while serving as an official or employee of the State become or be an employee of the contractor or any entity that is a subcontractor on this contract.”</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Disputes."> <text>Mandatory provision for all contracts. One of the following clauses is preferred:</text> <paragraph num="A."> <text>Alternate Disputes Clause (short form). “This contract shall be subject to the provisions of State Finance and Procurement Article, Title 15, Subtitle 2, Annotated Code of Maryland, and COMAR 21.10 (Administrative and Civil Remedies). Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the contract in accordance with the procurement officer's decision.”</text> </paragraph> <paragraph num="B."> <text>Alternate Disputes Clause (long form).</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Maryland Law Prevails."> <text>Mandatory provision for all contracts unless otherwise authorized by the Board of Public Works.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Nondiscrimination in Employment."> <text>Mandatory provision for all contracts. The following clause is preferred:</text> <included-document> <text>“The Contractor agrees: (a) not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, sexual orientation, gender identity, marital status, national origin, ancestry genetic information or any otherwise unlawful use of characteristics, or disability of a qualified individual with a disability unrelated in nature and extent so as to reasonably preclude the performance of the employment, or the individual’s refusal to submit to a genetic test or make available the results of a genetic test; (b) to include a provision similar to that contained in subsection (a), above, in any underlying subcontract except a subcontract for standard commercial supplies or raw materials; and (c) to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".09" heading="Contingent Fee Prohibition."> <text>Mandatory provision for all contracts:</text> <included-document> <text>“The contractor, architect, or engineer (as applicable) warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee or agent working for the contractor, architect, or engineer, to solicit or secure this agreement, and that it has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee or agent, any fee or any other consideration contingent on the making of this agreement.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".10" heading="Multi-Year Contracts Contingent Upon Appropriations."> <text>Mandatory provision for all contracts and contract modifications to be effective in more than one fiscal year:</text> <included-document> <text>“If the General Assembly fails to appropriate funds or if funds are not otherwise made available for continued performance for any fiscal period of this Contract succeeding the first fiscal period, this Contract shall be cancelled automatically as of the beginning of the fiscal year for which funds were not appropriated or otherwise made available; provided, however, that this will not affect either the State's rights or the Contractor's rights under any termination clause in this Contract. The effect of termination of the Contract hereunder will be to discharge both the Contractor and the State from future performance of the Contract, but not from their rights and obligations existing at the time of termination. The Contractor shall be reimbursed for the reasonable value of any non-recurring costs incurred but not amortized in the price of the Contract. The State shall notify the Contractor as soon as it has knowledge that funds may not be available for the continuation of this Contract for each succeeding fiscal period beyond the first.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".11" heading="Termination for Default."> <text>Mandatory provision for all contracts. One of the following clauses is preferred:</text> <paragraph num="A."> <text>Alternate Clause — Termination for Default (short form).</text> </paragraph> <paragraph num="B."> <text>Alternate Clause — Termination for Default (long form).</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".12" heading="Termination for Convenience."> <paragraph num="A."> <text>Except as provided in §B of this regulation, mandatory provision for all contracts. One of the following clauses is preferred:</text> <paragraph num="(1)"> <text>Alternate Clause — Termination for Convenience (short form).</text> </paragraph> <paragraph num="(2)"> <text>Alternate Clause — Termination for Convenience (long form).</text> </paragraph> </paragraph> <paragraph num="B."> <text>Leases of Real Property.</text> <paragraph num="(1)"> <text>Inclusion of a termination for convenience clause in a real property lease is discretionary with the Board of Public Works, upon recommendation of the Secretary of General Services.</text> </paragraph> <paragraph num="(2)"> <text>In recommending the exclusion of a termination for convenience clause in a real property lease, the Secretary shall consider such factors as:</text> <paragraph num="(a)"> <text>The practicality of including the termination for convenience clause in a lease of real property located in another state or overseas when the demand for property of a particular type or in some particular geographic location is extremely intense, or when the contents of a lease are established by a foreign government and are effectively non-negotiable, or both;</text> </paragraph> <paragraph num="(b)"> <text>The perception of some landlords that the termination for convenience clause permits the State to unilaterally convert a fixed term lease to a day-to-day lease; or</text> </paragraph> <paragraph num="(c)"> <text>The prospects that some lending institutions may reject loan requests from landlords owning property that the State might wish to lease but that must be first upgraded at the owner's expense to meet State User Agency Requirements.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".13" heading="Delays and Extensions of Time."> <text>Mandatory provision for all contracts. It shall be in substantially the same form as follows:</text> <included-document> <text>“Delays and Extensions of Time”</text> <text>"The Contractor agrees to prosecute the work continuously and diligently and no charges or claims for damages shall be made by it for any delays or hindrances from any cause whatsoever during the progress of any portion of the work specified in this Contract.</text> <text>“Time extensions will be granted only for excusable delays that arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, acts of the public enemy, acts of the State in either its sovereign or contractual capacity, acts of another Contractor in the performance of a contract with the State, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of either the Contractor or the subcontractors or suppliers.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".14" heading="Liquidated Damages."> <text>Mandatory provision for:</text> <paragraph num="A."> <text>All contracts with certified MBE participation goals in accordance with COMAR 21.11.03.10E; and</text> </paragraph> <paragraph num="B."> <text>Any other contracts deemed appropriate by the procurement officer in consultation with the Office of the Attorney General.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".15" heading="Variations in Estimated Quantities."> <text>Mandatory provision for all contracts that contain estimated quantity items.</text> </regulation> <regulation prefix="Regulation" num=".16" heading="Suspension of Work."> <text>Mandatory provision for all contracts. It shall be in substantially the same form as follows:</text> <included-document> <text>“The procurement officer unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of the work for such period of time as the procurement officer may determine to be appropriate for the convenience of the State.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".17" heading="Pre-existing Regulations."> <text>Mandatory provision for all contracts. It shall be in substantially the same form as follows:</text> <included-document> <text>“In accordance with the provisions of §11-206 of the State Finance and Procurement Article, Annotated Code of Maryland, the regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR Title 21) in effect on the date of execution of this Contract are applicable to this Contract.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".18" heading="Payment of State Obligations."> <text>Mandatory provision for all contracts. The following clause is preferred:</text> <included-document> <text>“Unless a payment is unauthorized, deferred, delayed, or set-off under COMAR 21.02.07, Payments to the Contractor pursuant to this Contract shall be made no later than 30 days after the State’s receipt of a proper invoice from the Contractor.</text> <text>The Contractor may be eligible to receive late payment interest at the rate of 9% per annum if:</text> </included-document> </regulation> <regulation prefix="Regulation" num=".19" heading="Financial Disclosure."> <text>Mandatory provision for all contracts:</text> <included-document> <text>“The Contractor shall comply with the provisions of State Finance and Procurement Article §13-221, Annotated Code of Maryland. That section requires a business to file with the Secretary of State of Maryland certain specified information, including disclosure of beneficial ownership of the business, within 30 days of the date the aggregate value of any contracts, leases, or other agreements that the business enters into with the State of Maryland or its agencies during a calendar year reaches $200,000.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".20" heading="Political Contribution Disclosure."> <text>Mandatory provision for all contracts:</text> <included-document> <text>“The Contractor shall comply with Election Law Article, Title 14, Annotated Code of Maryland, which requires that every person that enters into a procurement contract with the State, a county, or a municipal corporation, or other political subdivision of the State, during a calendar year in which the person receives a contract with a governmental entity in the amount of $200,000 or more, shall file with the State Board of Elections statements disclosing:(a) any contributions made during the reporting period to a candidate for elective office in any primary or general election; and (b) the name of each candidate to whom one or more contribution in a cumulative amount of $500 or more were made during the reporting period. The statement shall be filed with the State Board of Elections:(a) before execution of a contract by the State, a county, a municipal corporation, or other political subdivision of the State, and shall cover the 24 months prior to when a contract was awarded; and (b) if the contribution is made after the execution of a contract, then twice a year, throughout the contract term, on or before:(i) May 31, to cover the six (6) month period ending April 30; and (ii) November 30, to cover the six (6) month period ending October 31. Additional information is available on the State Board of Election website: http://www.elections.state.md.us/campaign_finance/index.html.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".21" heading="Retention of Records."> <text>Mandatory provision for all contracts. The following clause is preferred:</text> <included-document> <text>“The Contractor shall retain and maintain all records and documents relating to this Contract for three years after final payment by the State hereunder or any applicable statute of limitations, whichever is longer, and shall make them available for inspection and audit by authorized representatives of the State, including the procurement officer or designee, at all reasonable times.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".22" heading="Compliance with Laws."> <text>Mandatory provision for all contracts. The following clause is preferred:</text> <included-document> <text>"The Contractor hereby represents and warrants that:</text> </included-document> </regulation> <regulation prefix="Regulation" num=".23" heading="Cost and Price Certification."> <text>Mandatory provision for all contracts and contract modifications (excluding real property leases and architectural services or engineering services contracts (see Regulation .24)) if the contract or modification exceeds $100,000 or a smaller amount determined by the procurement officer under State Finance and Procurement Article, §13-220. The language shall be in substantially the same form as follows:</text> <included-document> <text>“Cost and Price Certification”</text> <text>"A. The Contractor by submitting cost or price information certifies that, to the best of its knowledge, the information submitted is accurate, complete, and current as of a mutually determined specified date prior to the conclusion of any price discussions or negotiations for:</text> </included-document> </regulation> <regulation prefix="Regulation" num=".24" heading="Truth-In-Negotiation Certification."> <text>Mandatory provision for architectural services or engineering services contracts exceeding $100,000. It shall be in substantially the same form as follows:</text> <included-document> <text>“Truth-In-Negotiation Certification”</text> <text>"The Contractor by submitting cost or price information, including wage rates or other factual unit costs, certifies to the best of its knowledge, information and belief, that:</text> <text>"A. The wage rates and other factual unit costs supporting the firm's compensation, as set forth in the proposal, are accurate, complete and current as of the contract date;</text> </included-document> </regulation> <regulation prefix="Regulation" num=".25" heading="Contract Affidavit."> <text>Mandatory contract addendum. The contract addendum shall be in substantially the same form as follows and submitted upon initial award and each renewal thereafter:</text> <included-document /> </regulation> <regulation prefix="Regulation" num=".26" heading="Commercial Nondiscrimination Clause."> <paragraph num="A."> <text>The following provision is mandatory for all State contracts and subcontracts: “As a condition of entering into this Agreement, the company represents and warrants that it will comply with the State’s Commercial Nondiscrimination Policy, as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland. As part of such compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or on the basis of disability, or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that nothing contained in this clause shall prohibit or limit otherwise lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. Contractor understands that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.”</text> </paragraph> <paragraph num="B."> <text>The following provision is mandatory for all State contracts: “As a condition of entering into this Agreement, upon the request of the Commission on Civil Rights, and only after the filing of a complaint against Contractor under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland, as amended from time to time, Contractor agrees to provide within 60 days after the request a complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past 4 years on any of its contracts that were undertaken within the State of Maryland, including the total dollar amount paid by Contractor on each subcontract or supply contract. Contractor further agrees to cooperate in any investigation conducted by the State pursuant to the State’s Commercial Nondiscrimination Policy as set forth under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland, and to provide any documents relevant to any investigation that are requested by the State. Contractor understands that violation of this clause is a material breach of this Agreement and may result in contract termination, disqualification by the State from participating in State contracts, and other sanctions.”</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".27" heading="Performance and Payment Bonds."> <text>Click here for full text of Regulation 21.07.01.27 (FORM AT END OF CHAPTER)</text> </regulation> <regulation prefix="Regulation" num=".28" heading="Performance and Payment Bonds — Multiyear Annual and Renewable."> <text>Click here for full text of Regulation 21.07.01.28 (FORM AT END OF CHAPTER)</text> </regulation> <regulation prefix="Regulation" num=".29" heading="Election Service Providers — Ownership of, Investment In, or Control of an Election Service Provider by a Foreign National."> <text>Mandatory provision for all State Board of Elections contracts, including secondary competition awards, with an election service provider, as defined in Election Law Article, Title 2, Subtitle 1, Annotated Code of Maryland. The following clause is preferred:</text> <included-document> <text>“The Contractor agrees to provide notice of:(a) any ownership of, investment in, or control of the election service provider by a foreign national at the time of the award of the contract; and (b) any material change in any ownership of, investment in, or control of the election service provider by a foreign national at any time for the duration of the contract. All notices required by this provision shall include:(a) the name and nationality of the foreign national that has ownership of, investment in, or control of the election service provider; and (b) the nature and extent of the ownership, investment, or control.</text> <text>On a determination by the Administrator of the State Board of Elections that the foreign national has the ability to control, influence, or direct the election service provider in any manner that would compromise or influence, or give the appearance of compromising or influencing, the independence and integrity of an election, the Administrator of the State Board of Elections may terminate, in whole or in part, the contract with the election service provider.</text> <text>Within 7 days after the Administrator of the State Board of Elections exercises the authority to terminate, in whole or in part, a contract with an election service provider under this regulation, the Administrator of the State Board of Elections shall notify the appropriate persons in writing of the termination of the contract and the Administrator’s reasons for terminating the contract.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".30" heading="Election Service Providers — Actual or Attempted Security Violations."> <text>Mandatory provision for all State Board of Elections contracts, including secondary competition awards, with an election service provider, as defined in Election Law Article, Title 2, Subtitle 1, Annotated Code of Maryland. The following clause is preferred:</text> <included-document> <text>“The Contractor, upon receipt of knowledge that a security violation or significant attempted security violation, as defined in Election Law Article, Title 2, Subtitle 1, Annotated Code of Maryland, has occurred involving an election system provided, supported, or maintained by the election service provider, shall:(a) notify the Administrator of the State Board of Elections in writing as soon as practicable, but not later than four days after becoming aware of the security violation or significant attempted security violation; and (b) cooperate with the Administrator of the State Board of Elections in submitting a report on each security violation and significant attempted security violation involving an election system.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".31" heading="Prompt Payment of Subcontractors."> <text>Mandatory provisions for all contracts:</text> <paragraph num="A."> <text>This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §§A—D of this regulation, the terms “undisputed amount”, “prime contractor”, “contractor”, “subcontractor,” “supplier”, and “supplier” have the meanings stated in COMAR 21.10.08.01.</text> </paragraph> <paragraph num="B."> <text>A contractor shall promptly pay its subcontractors or suppliers an undisputed amount to which a subcontractor or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.</text> </paragraph> <paragraph num="C."> <text>If a contractor fails to make payment within the period prescribed in §B of this regulation, a subcontractor or supplier may request a remedy in accordance with COMAR 21.10.08.</text> </paragraph> <paragraph num="D."> <text>A contractor shall include in its subcontracts at any tier for work under this contract wording that incorporates the provisions, duties, and obligations of §§A—D of this regulation, State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">Election Law Article, §§14-101—14-108; General Provisions Article, §§5-101 and 5-503; State Finance and Procurement Article, §§12-101, 13-211, 13-217—13-219, 13-221—13-223, 13-317, 15-226 ,16-202, 17-401, 17-402, and 19-114; Annotated Code of Maryland; Chs. 588, 589, and 630, Acts of 2017; Ch. 403, Acts of 2019</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09A amended effective May 6, 1985 (12:9 Md. R. 816)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective October 2, 2000 (27:19 Md. R. 1730); July 9, 2001 (28:13 Md. R. 1216)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective December 25, 2000 (27:25 Md. R. 2284); January 2, 2017 (43:26 Md. R. 1449); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11A amended effective November 22, 1993 (20:23 Md. R. 1086)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12A amended effective November 22, 1993 (20:23 Md. R. 1086); May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14 amended effective May 13, 2013 (40:9 Md. R. 789); July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .18 amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .19 amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .20 amended effective January 26, 1998 (25:2 Md. R. 79); December 25, 2000 (27:25 Md. R. 2284); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .25 amended effective October 1, 1990 (17:19 Md. R. 2322); August 2, 1993 (20:15 Md. R. 1221); August 8, 2011 (38:16 Md. R. 946); May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .25C amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .25D amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26 adopted as an emergency provision effective August 8, 1997 (24:18 Md. R. 1294); emergency status rescinded effective October 16, 1997 (24:23 Md. R. 1608)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26 adopted effective March 12, 2007 (34:5 Md. R. 562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26A amended effective January 2, 2017 (43:26 Md. R. 1449); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26B amended effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .27 adopted effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .28 adopted effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .29 adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .30 adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .31 adopted effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .31 amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> </annotations> </chapter> <chapter num="02" heading="Mandatory Construction Contract Clauses"> <regulation prefix="Regulation" num=".01" heading="Application."> <paragraph num="A."> <text>In addition to the clauses required by this chapter, each construction contract shall include the clauses required by COMAR 21.07.01.</text> </paragraph> <paragraph num="B."> <text>If clauses covering the same subject matter are required by COMAR 21.07.01 and this chapter, the clauses set forth in this chapter shall be used in each construction contract.</text> </paragraph> <paragraph num="C."> <text>The language of the clauses set forth in this chapter may not be varied.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Changes."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>"Changes</text> <text>"(1) The procurement officer unilaterally may, at any time, without notice to the sureties, if any, by written order designated or indicated to be a change order, make any change in the work within the general scope of the contract, including but not limited to changes:</text> </included-document> </regulation> <regulation prefix="Regulation" num=".03" heading="Variations in Estimated Quantities."> <text>Mandatory provision for only those construction contracts that contain estimated quantity items:</text> <included-document> <text>"Variations in Estimated Quantities</text> <text>“Where the quantity of a pay item in this contract is an estimated quantity and where the actual quantity of such pay item varies more than twenty-five percent (25%) above or below the estimated quantity stated in this contract, an equitable adjustment in the contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above one hundred twenty-five percent (125%) or below seventy-five percent (75%) of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the procurement officer shall, upon receipt of a written request for an extension of time within ten (10) days from the beginning of the delay, or within a further period of time which may be granted by the procurement officer before the date of final settlement of the contract, ascertain the facts and make the adjustment for extending the completion date as in the procurement officer’s judgment the findings justify.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".04" heading="Suspension of Work."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>"Suspension of Work</text> <text>"(1) The procurement officer unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of the work for a period of time as the procurement officer may determine to be appropriate for the convenience of the State.</text> <text>"(2) If the performance of all or any part of the work is for an unreasonable period of time, suspended, delayed, or interrupted by an act of the procurement officer in the administration of this contract, or by the procurement officer’s failure to act within the time specified in this contract (or if no time is specified, within a reasonable time), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by an unreasonable suspension, delay, or interruption and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent(1) that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor or (2) for which an equitable adjustment is provided for or excluded under any provision of this contract.</text> <text>“(3) No claim under this clause shall be allowed(1) for any costs incurred more than 20 days before the Contractor shall have notified the procurement officer in writing of the act or failure to act involved (but this requirement shall not apply as to a claim resulting from a suspension order), and (2) unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of a suspension, delay, or interruption, but not later than the date of final payment under the contract.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".05" heading="Differing Site Conditions."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>"Differing Site Conditions</text> <text>"(1) The Contractor shall promptly, and before such conditions are disturbed, notify the procurement officer in writing of:(1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The procurement officer shall promptly investigate the conditions, and if the procurement officer finds that such conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for, performance of any part of the work under this contract, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the contract modified in writing accordingly.</text> <text>"(2) No claim of the Contractor under this clause shall be allowed unless the Contractor has given the notice required in paragraph(1) of this clause; provided, however, the time prescribed therefor may be extended by the State.</text> <text>“(3) No claim by the Contractor for an equitable adjustment hereunder shall be allowed if asserted after final payment under this contract.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".05-1" heading="Disputes."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>“A. This contract is subject to the provisions of State Finance and Procurement Article, Title 15, Subtitle 2, Annotated Code of Maryland, and COMAR 21.10.</text> <text>“B. Except as otherwise provided in this contract or by law, all disputes arising under or as a result of a breach of this contract that are not disposed of by mutual agreement shall be resolved in accordance with this clause.</text> <text>“C. As used herein, claim means a written demand or assertion by one of the parties seeking, as a legal right, the payment of money, adjustment or interpretation of contract terms, or other relief, arising under or relating to this contract. A voucher, invoice, or request for payment that is not in dispute when submitted is not a claim under this clause. However, if the submission subsequently is not acted upon in a reasonable time, or is disputed as to liability or amount, it may be converted to a claim for the purpose of this clause.</text> <text>“D. Within 30 days after contractor knows or should have known of the basis for a claim relating to this contract, contractor shall file a written notice of claim with the procurement officer.</text> <text>“E. Contemporaneously with, or within 90 days after, the filing of a notice of claim, contractor shall submit the written claim to the procurement officer. If contractor so requests, the procurement officer, on conditions the procurement officer deems satisfactory to the unit, may extend the time in which contractor must submit the claim. An example of when a procurement officer may grant an extension includes situations in which the procurement officer finds that a contemporaneous or timely cost quantification following the filing of the notice of claim is impossible or impractical.</text> <text>“F. The claim shall set forth all the facts surrounding the controversy. Contractor, at the discretion of the procurement officer, may be afforded an opportunity to be heard and to offer evidence in support of the claim.</text> <text>“G. The procurement officer shall mail or deliver written notification of the final decision within:</text> <text>“(1) 90 days after the procurement officer receives the claim if the claim is an amount for which the Appeals Board accelerated procedure, set forth in COMAR 21.10.06.12, may be used;</text> <text>“(2) 180 days after the procurement officer receives the claim for a claim not covered under G(1) of this clause; or</text> <text>“(3) A longer period that the procurement officer and contractor agree to in writing.</text> <text>“H. The final decision may award a contract claim only for those expenses incurred not more than 30 days before contractor was initially required to have filed the notice of claim.</text> <text>“I. The procurement officer's decision is the final action of the agency. If the procurement officer fails to render a final decision within the time required, contractor may deem the failure to be a final decision not to pay the claim.</text> <text>“J. If the final decision grants the claim in part and denies the claim in part, the agency shall pay contractor the undisputed amount. Payment of the partial claim is not an admission of liability by the agency and does not preclude the agency from recovering the amount paid if a subsequent determination modifies the final decision.</text> <text>“K. Contractor may file a written appeal with the Maryland State Board of Contract Appeals within 30 days of receipt of notice of the decision.</text> <text>“L. Pending resolution of a claim, contractor shall proceed diligently with the performance of the contract in accordance with the procurement officer's decision.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".05-2" heading="Prompt Payment of Subcontractors."> <text>Mandatory provisions for all construction contracts:</text> <included-document /> </regulation> <regulation prefix="Regulation" num=".05-3" heading="Retainage."> <text>Mandatory provisions for all construction contracts:</text> <included-document /> </regulation> <regulation prefix="Regulation" num=".06" heading="Site Investigation."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>"Site Investigation</text> <text>“The Contractor acknowledges that the Contractor has investigated and satisfied itself as to the conditions affecting the work, including but not restricted to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, the conformation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the work. The Contractor further acknowledges that the Contractor has satisfieditself as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the State, as well as from information presented by the drawings and specifications made a part of this contract. Any failure by the Contractor to acquaint itself with the available information may not relieve the Contractor from responsibility for estimating properly the difficulty or cost of successfully performing the work. The State assumes no responsibility for any conclusions or interpretations made by the Contractor on the basis of the information made available by the State.”</text> </included-document> </regulation> <regulation prefix="Regulation" num=".07" heading="Default, Delay and Time Extensions."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>“Termination for Default — Damages for Delay — Time Extensions</text> <text>“(1) If the Contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as shall insure its completion within the time specified in this contract, or any extension thereof, fails to complete said work within this time, or fails to provide any required annual and renewable bond 30 days prior to expiration of the current bond then in effect, the State may, by written notice to the Contractor, terminate the Contractor’s right to proceed with the work or the part of the work as to which there has been delay. In this event the State may take over the work and prosecute the same to completion, by contract or otherwise, and may take possession of and utilize in completing the work the materials, appliances, and plant as may be on the site of the work and necessary therefor. Whether or not the Contractor’s right to proceed with the work is terminated, the Contractor and its sureties shall be liable for any damage to the State resulting from the Contractor’s refusal or failure to complete the work within the specified time.</text> <text>“(2) If fixed and agreed liquidated damages are provided in the contract and if the State so terminates the Contractor's right to proceed, the resulting damage shall consist of such liquidated damages until a reasonable time as may be required for final completion of the work together with any increased costs occasioned the State in completing the work.</text> <text>“(3) If fixed and agreed liquidated damages are provided in the contract and if the State does not so terminate the Contractor's right to proceed, the resulting damage shall consist of these liquidated damages until the work is completed or accepted.</text> <text>“(4) The Contractor's right to proceed may not be so terminated nor the contractor charged with resulting damages if:</text> </included-document> </regulation> <regulation prefix="Regulation" num=".08" heading="Liquidated Damages."> <text>Mandatory provision for:</text> <paragraph num="A."> <text>All contracts with certified MBE participation goals, in accordance with COMAR 21.11.03.10E; and</text> </paragraph> <paragraph num="B."> <text>All construction contracts unless the agency head determines that the exclusion of the clause is in the best interest of the State:</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Termination for Convenience."> <text>Mandatory provision for all construction contracts:</text> <included-document> <text>"Termination for Convenience of the State</text> <text>“(1) The performance of work under this contract may be terminated by the State in accordance with this clause in whole, or from time to time in part, whenever the procurement officer shall determine that such termination is in the best interest of the State. Any such termination shall be effected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance of work under the contract is terminated, and the date upon which such termination becomes effective.</text> <text>“(2) After receipt of a Notice of Termination, and except as otherwise directed by the procurement officer, the Contractor shall:</text> </included-document> </regulation> <regulation prefix="Regulation" num=".10" heading="Performance and Payment Bonds."> <text>Mandatory provision for all construction contracts exceeding $100,000:</text> <included-document /> </regulation> <regulation prefix="Regulation" num=".11" heading="Performance and Payment Bonds — Multiyear Annual and Renewable."> <text>For full text of Regulation 21.07.02.11, at end of chapter (FORM AT END OF CHAPTER)</text> </regulation> <regulation prefix="Regulation" num=".12" heading="Payment of Employee Health Care Expenses."> <paragraph num="A."> <text>The following is a mandatory provision for all State-funded construction contracts awarded after a competitive sealed bid:</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 13-216, 13-218, 13-225, 15-226, and 17-801—17-804, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective May 6, 1985 (12:9 Md. R. 816)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective January 2, 2017 (43:26 Md. R. 1449); July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05-1 adopted effective October 6, 1997 (24:20 Md. R. 1405)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05-1E amended effective January 24, 2000 (27:1 Md. R. 78)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05-2 adopted effective October 2, 2000 (27:19 Md. R. 1730)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05-2 amended effective July 9, 2001 (28:13 Md. R. 1216); September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05-3 adopted effective July 9, 2001 (28:13 Md. R. 1216)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 amended effective May 20, 1996 (23:10 Md. R. 733); February 23, 2009 (36:4 Md. R. 355); March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10A amended effective March 11, 2019 (46:5 Md. R. 310); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 adopted effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 adopted effective May 17, 2021 (48:10 Md. R. 401)</annotation> </annotations> </chapter> <chapter num="03" heading="Mandatory Terms and Conditions for Purchase Orders Over $50,000"> <regulation prefix="Regulation" num=".01" heading="General."> <text>The following are mandatory terms and conditions to be included in all purchase orders exceeding $50,000.</text> </regulation> <regulation prefix="Regulation" num=".01-1" heading="Incorporation by Reference."> <text>“All terms and conditions of the solicitation, and any amendments thereto, are made a part of this contract.”</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Tax Exemption."> <text>“The State is generally exempt from federal excise taxes, Maryland sales and use taxes, District of Columbia sales taxes, and transportation taxes. Exemption certificates shall be completed upon request. Where a contractor is required to furnish and install material in the construction or improvement of real property in performance of a contract, the Contractor shall pay the Maryland sales tax and the exemption does not apply.”</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Specifications."> <text>“All materials, equipment, supplies or services shall conform to federal and State laws and regulations and to the specifications contained in the solicitation.”</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Delivery and Acceptance."> <text>“Delivery shall be made in accordance with the solicitation specifications. The State, in its sole discretion, may extend the time of performance for excusable delays due to unforeseeable causes beyond the Contractor's control. The State unilaterally may order in writing the suspension, delay, or interruption of performance hereunder. The State reserves the right to test any materials, equipment, supplies, or services delivered to determine if the specifications have been met. The materials listed in the bid or proposal shall be delivered FOB the point or points specified prior to or on the date specified in the bid or proposal. Any material that is defective or fails to meet the terms of the solicitation specifications shall be rejected. Rejected materials shall be promptly replaced. The State reserves the right to purchase replacement materials in the open market. Contractors failing to promptly replace materials lawfully rejected shall be liable for any excess price paid for the replacement, plus applicable expenses, if any.”</text> </regulation> <regulation prefix="Regulation" num=".05" heading="Non-Hiring of Officials and Employees."> <text>“No official or employee of the State, as defined under State Government Article, §15-102, Annotated Code of Maryland, whose duties as such official or employee include matters relating to or affecting the subject matter of this contract shall, during the pendancy or term of this contract and while serving as an official or employee of the State, become or be an employee of the contractor or any entity that is a subcontractor on this contract.”</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Nondiscrimination in Employment."> <text>“The Contractor agrees not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, sexual orientation, gender identity, marital status, national origin, ancestry, or physical or mental disability of a qualified individual with a disability and to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause.”</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Financial Disclosure."> <text>“The Contractor shall comply with State Finance and Procurement Article, §13-221, Annotated Code of Maryland. That section requires a business to file with the Secretary of State of Maryland certain specified information, including disclosure of beneficial ownership of the business, within 30 days of the date the aggregate value of any contracts, leases, or other agreements that the business enters into with the State of Maryland or its agencies during a calendar year reaches $200,000.”</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Political Contribution Disclosure."> <text>“The Contractor shall comply with the political contribution reporting requirements to which the contractor may be subject under Election Law Article, Title 14, Annotated Code of Maryland. That title includes requirements for persons making or having a single contract with a single governmental entity involving cumulative consideration of at least $200,000 to file certain statements with the State Board of Elections both before the execution of such contracts by that governmental entity and periodically thereafter; and further requires the governmental entity to require such persons to certify that they have filed such statements. Additional information is available on the State Board of Elections website.”</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Anti-Bribery."> <text>“The Contractor warrants that neither it nor any of its officers, directors, or partners nor any of its employees who are directly involved in obtaining or performing contracts with any public body has been convicted of bribery, attempted bribery, or conspiracy to bribe under the laws of any state or of the federal government or has engaged in conduct since July 1, 1977, which would constitute bribery, attempted bribery, or conspiracy to bribe under the laws of any state or the federal government.”</text> </regulation> <regulation prefix="Regulation" num=".10" heading="Registration."> <text>“Pursuant to §7-201 et seq. of the Corporations and Associations Article of the Annotated Code of Maryland, corporations not incorporated in the State shall be registered with the State Department of Assessments and Taxation, 301 West Preston St., Baltimore, Maryland 21201, before doing any interstate or foreign business in this State. Before doing any intrastate business in this State, a foreign corporation shall qualify with the Department of Assessments and Taxation.”</text> </regulation> <regulation prefix="Regulation" num=".11" heading="Contingent Fees."> <text>“The Contractor warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee or agent working for the Contractor, to solicit or secure this agreement, and that it has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee or agent, any fee or any other consideration contingent on the making of this agreement.”</text> </regulation> <regulation prefix="Regulation" num=".12" heading="EPA Compliance."> <text>“Materials, supplies, equipment, or services shall comply in all respects with the Federal Noise Control Act of 1972, where applicable.”</text> </regulation> <regulation prefix="Regulation" num=".13" heading="Occupational Safety and Health Act (O.S.H.A.)."> <text>“All materials, supplies, equipment, or services supplied as a result of this contract shall comply with the applicable U. S. and Maryland Occupational Safety and Health Act standards.”</text> </regulation> <regulation prefix="Regulation" num=".14" heading="Termination for Convenience."> <text>“Upon written notice to the Contractor, the State may terminate this contract, in whole or in part, whenever the State shall determine that such termination is in the best interest of the State. The State shall pay all reasonable costs incurred up to the date of termination and all reasonable costs associated with termination of the contract. However, the Contractor may not be reimbursed for anticipatory profits. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2).”</text> </regulation> <regulation prefix="Regulation" num=".15" heading="Termination for Default."> <text>“When the Contractor has not performed or has unsatisfactorily performed the contract, payment shall be withheld at the discretion of the State. Failure on the part of a Contractor to fulfill contractual obligations shall be considered just cause for termination of the contract and the Contractor is not entitled to recover any costs incurred by the Contractor up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B.”</text> </regulation> <regulation prefix="Regulation" num=".16" heading="Disputes."> <text>“This contract shall be subject to the provisions of Title 15, Subtitle 2, of the State Finance and Procurement Article of the Annotated Code of Maryland and COMAR 21.10 (Administrative and Civil Remedies). Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the contract in accordance with the procurement officer's decision.”</text> </regulation> <regulation prefix="Regulation" num=".17" heading="Multi-Year Contracts."> <text>“If funds are not appropriated or otherwise made available to support continuation in any fiscal year succeeding the first fiscal year, this contract shall terminate automatically as of the beginning of the fiscal year for which funds are not available. The Contractor may not recover anticipatory profits or costs incurred after termination.”</text> </regulation> <regulation prefix="Regulation" num=".18" heading="Intellectual Property."> <text>“Contractor agrees to indemnify and save harmless the State, its officers, agents and employees with respect to any claim, action, cost or judgment for patent infringement, or trademark or copyright violation arising out of purchase or use of materials, supplies, equipment or services covered by this contract.”</text> </regulation> <regulation prefix="Regulation" num=".19" heading="Maryland Law Prevails."> <text>“The provisions of this contract shall be governed by the laws of Maryland.”</text> </regulation> <regulation prefix="Regulation" num=".20" heading="Contractor's Invoices."> <text>“Contractor agrees to include on the face of all invoices billed to the State, its Taxpayer Identification Number, which is the Social Security Number for individuals and sole proprietors and the Federal Employer Identification Number for all other types of organizations.”</text> </regulation> <regulation prefix="Regulation" num=".21" heading="Pre-existing Regulations."> <text>“The regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR Title 21) in effect on the date of execution of this Contract are applicable to this Contract.”</text> </regulation> <regulation prefix="Regulation" num=".22" heading="Repealed." /> <regulation prefix="Regulation" num=".23" heading="Indemnification."> <text>“The State shall not assume any obligation to indemnify, hold harmless, or pay attorneys' fees that may arise from or in any way be associated with the performance or operation of this agreement.”</text> </regulation> <regulation prefix="Regulation" num=".24" heading="Conflicting Terms."> <text>“Any proposal for terms in addition to or different from those set forth in this purchase order or any attempt by the Contractor to vary any of the terms of this offer by Contractor's acceptance shall not operate as a rejection of this offer, unless such variance is in the terms of the description, quantity, price or delivery schedule, but shall be deemed a material alteration thereof, and this offer shall be deemed acceptable by the Contractor without the additional or different terms. If this purchase order is an acceptance of a prior offer by the Contractor, the acceptance is expressly conditioned upon Contractor's assent to any additional or different terms contained herein. The Contractor understands and agrees that the terms and conditions of this purchase order may not be waived.”</text> </regulation> <regulation prefix="Regulation" num=".25" heading="Drug and Alcohol Free Workplace."> <text>“The contractor warrants that the contractor shall comply with COMAR 21.11.08, and that the contractor shall remain in compliance throughout the term of this purchase order.”</text> </regulation> <regulation prefix="Regulation" num=".26" heading="Commercial Nondiscrimination Clause."> <paragraph num="A."> <text>The following provision is mandatory for all State contracts: “As a condition of entering into this Agreement, Contractor represents and warrants that it will comply with the State's Commercial Nondiscrimination Policy, as described under State Finance and Procurement Article, Title 19, Annotated Code of Maryland. As part of this compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, or disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that this clause does not prohibit or limit lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. Contractor understands that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.”</text> </paragraph> <paragraph num="B."> <text>The Contractor shall include the provision in §A of this regulation in all subcontracts to the State contract.</text> </paragraph> <paragraph num="C."> <text>The following provision is mandatory for all State contracts: “As a condition of entering into this Agreement, upon the request of the Commission on Civil Rights, and only after the filing of a complaint against Contractor under State Finance and Procurement Article, Title 19, Annotated Code of Maryland, as amended from time to time, Contractor agrees to provide within 60 days after the request a complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past 4 years on any of its contracts that were undertaken within the State of Maryland, including the total dollar amount paid by Contractor on each subcontract or supply contract. Contractor further agrees to cooperate in any investigation conducted by the State pursuant to the State's Commercial Nondiscrimination Policy as set forth under State Finance and Procurement Article, Title 19, Annotated Code of Maryland, and to provide any documents relevant to any investigation that is requested by the State. Contractor understands that violation of this clause is a material breach of this Agreement and may result in contract termination, disqualification by the State from participating in State contracts, and other sanctions.”</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".27" heading="Prompt Payment of Subcontractors."> <text>Mandatory provisions for all contracts:</text> <paragraph num="A."> <text>This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §§A—D of this regulation, the terms “undisputed amount”, “prime contractor”, “contractor”, “subcontractor,” and “supplier” have the meanings stated in COMAR 21.10.08.01.</text> </paragraph> <paragraph num="B."> <text>A contractor shall promptly pay its subcontractors or suppliers an undisputed amount to which a subcontractor or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.</text> </paragraph> <paragraph num="C."> <text>If a contractor fails to make payment within the period prescribed in §B of this regulation, a subcontractor or supplier may request a remedy in accordance with COMAR 21.10.08.</text> </paragraph> <paragraph num="D."> <text>A contractor shall include in its subcontracts at any tier for work under this contract, wording that incorporates the provisions, duties, and obligations of §§A—D of this regulation, State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">Election Law Article, §§14-101—14-108; General Provisions Article, §§5-502—5-503; State Finance and Procurement Article, §§12-101, 13-217—13-219, 13-221, 15-226, 16-202, 17-401, and 17-402; Annotated Code of Maryland; Ch. 630, Acts of 2017</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter recodified from COMAR 21.07.04 to 21.07.03 and revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 recodified to Regulation .01-1 and new Regulation .01 adopted effective January 26, 1998 (25:2 Md. R. 79)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective October 2, 2000 (27:19 Md. R. 1730); July 9, 2001 (28:13 Md. R. 1216)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective December 25, 2000 (27:25 Md. R. 2284); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective January 26, 1998 (25:2 Md. R. 79) December 25, 2000 (27:25 Md. R. 2284); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulations .14 and .15 amended effective November 22, 1993 (20:23 Md. R. 1806)</annotation> <annotation type="History" subtype="Administrative History">Regulation .20 amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .22 amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .22 repealed effective November 20, 1994 (21:23 Md. R. 1936)</annotation> <annotation type="History" subtype="Administrative History">Regulation .25 adopted effective October 1, 1990 (17:19 Md. R. 2322)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26 adopted as an emergency provision effective August 8, 1997 (24:18 Md. R. 1294); emergency status rescinded effective October 16, 1997 (24:23 Md. R. 1608)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26 adopted effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26A amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .26C amended effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .27 adopted effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .27 amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> </annotations> </chapter> <chapter num="04" heading="Prohibited Provisions"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, “State contract” means any agreement entered into by the State.</text> </paragraph> <paragraph num="B."> <text>This section does not apply to a State contract relating to the purchase, redevelopment, or operation of a racing facility or training facility site as those terms are defined under Economic Development Article, §10–601, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Contract Prohibitions."> <paragraph num="A."> <text>Except as required by State or federal law, a State contract may not include the following:</text> <paragraph num="(1)"> <text>A provision that requires the State to indemnify, defend, or hold harmless another person without an appropriation of State funds for that purpose;</text> </paragraph> <paragraph num="(2)"> <text>A provision by which the State agrees to binding arbitration or any other binding extrajudicial dispute resolution process;</text> </paragraph> <paragraph num="(3)"> <text>A provision that names a jurisdiction or venue for any action or dispute against the state other than a court of proper jurisdiction in the State;</text> </paragraph> <paragraph num="(4)"> <text>A provision that requires the state to agree to limit the liability for any direct loss to the State for bodily injury, death, or damage to property of the State caused by the negligence, intentional or willful misconduct, fraudulent act, recklessness, or other tortious conduct of a person or a person’s employees or agents or a provision that would otherwise impose an indemnification obligation on the State;</text> </paragraph> <paragraph num="(5)"> <text>A provision that requires the State to be bound by a term or condition that:</text> <paragraph num="(a)"> <text>Is unknown to the State at the time of signing a contract;</text> </paragraph> <paragraph num="(b)"> <text>May be unilaterally changed by the other party; or</text> </paragraph> <paragraph num="(c)"> <text>Is electronically accepted by a State employee without authority;</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>A provision that provides for a person other than the Attorney General of Maryland to serve as legal counsel for the State, unless provided under State Government Article, §6–106, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(7)"> <text>A provision that is inconsistent with the State’s obligations under General Provisions Article, §§3 or 4, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(8)"> <text>A provision prohibited under State Finance and Procurement Article, §7–237, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(9)"> <text>A provision for automatic renewal that obligates the State to allocate funding in subsequent fiscal years; or</text> </paragraph> <paragraph num="(10)"> <text>A provision that limits the State’s ability to recover the cost of a replacement contractor.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If a State contract contains a provision listed under §A. of this regulation, the provision is void from the beginning and the contract containing that provision shall be enforceable as if it did not contain the provision.</text> </paragraph> <paragraph num="C."> <text>A State contract that contains a provision listed under §A of this regulation shall be governed by and construed in accordance with State law, notwithstanding any term or condition to the contrary in the contract.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §2-901, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: March 3, 2025 (52:4 Md. R. 221)</annotation> </annotations> </chapter> </subtitle> <subtitle num="08" heading="Suspension and Debarment"> <chapter num="01" heading="General"> <regulation prefix="Regulation" num=".01" heading="Purpose."> <text>The purpose of this subtitle is to:</text> <paragraph num="A."> <text>Promote the best interests of the public and the State by protecting the integrity of the procurement process; and</text> </paragraph> <paragraph num="B."> <text>Ensure open competition for public contracts and impartial selection of qualified and responsible participants in the procurement process.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Definitions."> <paragraph num="A."> <text>In this subtitle, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Business” means an individual, or a corporation, partnership, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.</text> </paragraph> <paragraph num="(2)"> <text>“Contract” means any agreement in any form.</text> </paragraph> <paragraph num="(3)"> <text>“Controlling stockholder” means a stockholder who:</text> <paragraph num="(a)"> <text>Owns more than 25 percent of the voting shares of a corporation; or</text> </paragraph> <paragraph num="(b)"> <text>Has the power to direct or control the direction of the management or policies of a corporation, regardless of the number of shares the stockholder owns.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>“Conviction” means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes:</text> <paragraph num="(a)"> <text>A conviction entered upon an accepted plea of nolo contendere; or</text> </paragraph> <paragraph num="(b)"> <text>The imposition of probation before judgment.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>“Person” means an individual, or a corporation, partnership, sole proprietorship, joint stock company, joint venture, unincorporated association, union, committee, club, or other organization or legal entity.</text> </paragraph> <paragraph num="(6)"> <text>“Principal” means a person with actual or apparent authority to enter into a contract on behalf of a business.</text> </paragraph> <paragraph num="(7)"> <text>“Public body” means:</text> <paragraph num="(a)"> <text>The State;</text> </paragraph> <paragraph num="(b)"> <text>A unit; or</text> </paragraph> <paragraph num="(c)"> <text>A local governmental entity in the State, including a bicounty or multicounty governmental entity.</text> </paragraph> </paragraph> <paragraph num="(8)"> <text>Unit.</text> <paragraph num="(a)"> <text>“Unit” means an officer or other entity that is in the Executive Branch of the State government and is authorized by law to enter into a procurement contract.</text> </paragraph> <paragraph num="(b)"> <text>“Unit” does not include:</text> <paragraph num="(i)"> <text>A bistate, multistate, bicounty, or multicounty governmental agency; or</text> </paragraph> <paragraph num="(ii)"> <text>A special tax district, sanitary district, drainage district, soil conservation district, water supply district, or other political subdivision of the State.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(9)"> <text>Unsatisfactory Performance.</text> <paragraph num="(a)"> <text>“Unsatisfactory performance” means deficient performance or default, within the preceding 5 years, on one or more contracts.</text> </paragraph> <paragraph num="(b)"> <text>“Deficient performance” includes but is not limited to:</text> <paragraph num="(i)"> <text>Failure to perform in accordance with contract specifications or terms and conditions;</text> </paragraph> <paragraph num="(ii)"> <text>Untimely performance;</text> </paragraph> <paragraph num="(iii)"> <text>Performance that violates an applicable statute, regulation, ordinance, code, or standard of performance in the relevant industry.</text> </paragraph> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Public Notice of Suspension and Debarment Actions."> <paragraph num="A."> <text>The Board shall maintain a list of persons that it has suspended or debarred.</text> </paragraph> <paragraph num="B."> <text>A list of persons suspended or debarred for all or any portion of the fiscal year, including a summary of the scope of the suspension or debarment, shall be published in eMaryland Marketplace annually and shall be maintained in an electronic media accessible to the public.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§11-205.1, 12-101, and 16-201—16-312, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.04, Disqualification for Conviction of Bribery, Attempted Bribery or Conspiracy to Bribe, repealed and new Regulations .01—.03, General, adopted effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective October 2, 2000 (27:19 Md. R. 1731)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended effective March 8, 1999 (26:5 Md. R. 394); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="02" heading="Suspension"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>Upon the institution of debarment proceedings under COMAR 21.08.04, and before a final decision on debarment, the Board may suspend a person from:</text> <paragraph num="(1)"> <text>Being considered for the award of, being awarded, or performing a contract with a public body if the debarment proceedings are instituted under State Finance and Procurement Article, §16-202, Annotated Code of Maryland, and COMAR 21.08.03.01 or .02; or</text> </paragraph> <paragraph num="(2)"> <text>Being considered for the award of, being awarded, or performing a contract with the State if the debarment proceedings are instituted under State Finance and Procurement Article, §16-203, Annotated Code of Maryland, and COMAR 21.08.03.03.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If the Board suspends a person pending a decision on debarment, the person may petition the Board to modify or terminate the suspension. The petition shall be:</text> <paragraph num="(1)"> <text>In writing; and</text> </paragraph> <paragraph num="(2)"> <text>Received by the Board within 30 days after the person receives notice that it is suspended.</text> </paragraph> </paragraph> <paragraph num="C."> <text>If a suspended person's debarment would cause the debarment of a business under State Finance and Procurement Article, §16-307, Annotated Code of Maryland, and COMAR 21.08.03.04, the Board shall notify the business in writing within a reasonable time:</text> <paragraph num="(1)"> <text>That the business is suspended to the same extent that the person is suspended;</text> </paragraph> <paragraph num="(2)"> <text>Of the basis for the person's suspension; and</text> </paragraph> <paragraph num="(3)"> <text>Of the business' right to petition for modification or termination of the business' suspension.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Hearings.</text> <paragraph num="(1)"> <text>If a suspended person or business requests a hearing on its petition to terminate or modify its suspension, the Board, in its discretion, may grant or deny the request.</text> </paragraph> <paragraph num="(2)"> <text>If the Board grants the request for a hearing, the Board may delegate the hearing to a hearing officer and in such case shall refer the case to the Office of Administrative Hearings for assignment of a hearing officer.</text> </paragraph> <paragraph num="(3)"> <text>A hearing on a petition to modify or terminate a suspension shall be held in accordance with COMAR 21.08.04.06.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Suspension of Businesses by Operation of Law."> <paragraph num="A."> <text>A business is suspended to the same extent that a person is suspended if the person is:</text> <paragraph num="(1)"> <text>An officer, director, controlling shareholder, or partner of the business; or</text> </paragraph> <paragraph num="(2)"> <text>An employee of the business directly involved in the process of obtaining contracts with the State or public bodies.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Suspension under this regulation shall terminate if the business establishes to the satisfaction of the Board that the person no longer is associated with the business in any of the capacities described in §A of this regulation.</text> </paragraph> <paragraph num="C."> <text>If the business has been suspended under this regulation and wishes to establish that the business is entitled to termination of its suspension, the business shall notify the Board by certified mail that the person is no longer associated with the business in any of the capacities described in §A of this regulation. The Board may request that the Attorney General investigate the person's status with the business pursuant to State Finance and Procurement Article, §16-303, Annotated Code of Maryland, and make a recommendation to the Board.</text> </paragraph> <paragraph num="D."> <text>If a business requests a hearing to establish the business' right to termination of its suspension, a hearing shall be held in accordance with COMAR 21.08.04.02 and a final decision issued in accordance with COMAR 21.08.04.03.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Scope of Sanctions."> <paragraph num="A."> <text>At the time of suspension the Board may:</text> <paragraph num="(1)"> <text>Exercise or direct the exercise of the State's right to terminate any existing State contract with the person; or</text> </paragraph> <paragraph num="(2)"> <text>Prohibit any modification, extension, or renewal of any existing State contract with the person.</text> </paragraph> </paragraph> <paragraph num="B."> <text>In determining the scope or period of a person's suspension, the Board may impose such conditions on the person's State contract related activities as the Board considers appropriate, including, for example, appropriate monitoring of the person's future contracting activities with the State.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 16-101—16-312, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .02A and .03A amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601,</annotation> <annotation type="History" subtype="Administrative History">9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03 adopted effective August 2, 1993 (20:15 Md. R. 1221)</annotation> </annotations> </chapter> <chapter num="03" heading="Debarment"> <regulation prefix="Regulation" num=".01" heading="Debarment of Persons by Operation of Law from Contracts with Public Bodies."> <paragraph num="A."> <text>A person is debarred by operation of law from entering into a contract with a public body if the person has been convicted under the laws of the State of any of the following offenses, committed in furtherance of obtaining a contract with a public body:</text> <paragraph num="(1)"> <text>Bribery;</text> </paragraph> <paragraph num="(2)"> <text>Attempted bribery; or</text> </paragraph> <paragraph num="(3)"> <text>Conspiracy to bribe.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Opportunity to be Heard.</text> <paragraph num="(1)"> <text>The Board shall notify a person who is debarred by operation of law that the person is debarred and shall give a reasonable opportunity for that person to be heard on whether the stated basis for debarment exists and on the appropriate duration of the debarment.</text> </paragraph> <paragraph num="(2)"> <text>Notice shall be given pursuant to COMAR 21.08.04.01.</text> </paragraph> <paragraph num="(3)"> <text>A hearing shall be conducted pursuant to COMAR 21.08.04.02.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Debarment of Persons for Cause from Contracts with Public Bodies."> <paragraph num="A."> <text>A person may be debarred from entering into a contract with a public body if the person:</text> <paragraph num="(1)"> <text>Has been convicted under the laws of the State of any of the following offenses, committed other than in furtherance of obtaining a contract with any public body:</text> <paragraph num="(a)"> <text>Bribery,</text> </paragraph> <paragraph num="(b)"> <text>Attempted bribery, or</text> </paragraph> <paragraph num="(c)"> <text>Conspiracy to bribe;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Has been convicted under the laws of another state or of the United States for:</text> <paragraph num="(a)"> <text>Bribery,</text> </paragraph> <paragraph num="(b)"> <text>Attempted bribery,</text> </paragraph> <paragraph num="(c)"> <text>Conspiracy to bribe; or</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Has admitted, in writing or under oath, acts or omissions that would constitute bribery, attempted bribery, or conspiracy to bribe under the laws of the State, another state, or the United States.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Opportunity to be Heard.</text> <paragraph num="(1)"> <text>The Board shall notify a person that debarment proceedings have started and shall give a reasonable opportunity for that person to be heard on whether the stated basis for debarment exists.</text> </paragraph> <paragraph num="(2)"> <text>Notice shall be given pursuant to COMAR 21.08.04.01.</text> </paragraph> <paragraph num="(3)"> <text>If a hearing is requested, any hearing on debarment shall be conducted pursuant to COMAR 21.08.04.02.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The Board may suspend a person in accordance with COMAR 21.08.02 pending the Board's final debarment decision.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Debarment of Persons for Cause from State Contracts."> <paragraph num="A."> <text>A person may be debarred from entering into a contract with the State if that person or any of its officers, partners, controlling stockholders, principals, or other persons substantially involved in its contracting activities has been:</text> <paragraph num="(1)"> <text>Convicted under any state or federal law of a criminal offense, other than bribery, incident to obtaining, attempting to obtain, or performing a public or private contract;</text> </paragraph> <paragraph num="(2)"> <text>Convicted under any state or federal law of fraud, embezzlement, theft, forgery, falsification or destruction of records, or receiving stolen property;</text> </paragraph> <paragraph num="(3)"> <text>Convicted of a criminal violation of a state or federal antitrust statute;</text> </paragraph> <paragraph num="(4)"> <text>Convicted of a violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §1961 et seq., or the Mail Fraud Act, 18 U.S.C. §1341 et seq., for acts in connection with the submission of bids or proposals for a public or private contract;</text> </paragraph> <paragraph num="(5)"> <text>Convicted under State Finance and Procurement Article, §14-308, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(6)"> <text>Convicted under State Finance and Procurement Article, §11-205.1, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(7)"> <text>Convicted of a conspiracy to commit any act or omission that would constitute grounds for conviction or liability under any law described in §A(1)—(6) of this regulation;</text> </paragraph> <paragraph num="(8)"> <text>Found civilly liable under state or federal antitrust statutes for acts or omissions in connection with the submission of bids or proposals for a public or private contract;</text> </paragraph> <paragraph num="(9)"> <text>Debarred from federal contracts under the Federal Acquisition Regulation, as provided in 48 CFR Chapter 1, or Federal Executive Order 11246, as amended, due to discriminatory hiring practices in the State;</text> </paragraph> <paragraph num="(10)"> <text>Been found in a final adjudicated decision to have violated the Commercial Nondiscrimination Policy under State Finance and Procurement Article, Title 19, Annotated Code of Maryland, with regard to a public or private contract; or</text> </paragraph> <paragraph num="(11)"> <text>Been found to have willfully or knowingly violated State Government Article, Title 20, Subtitle 6, Annotated Code of Maryland, if the finding was made by a court and the decision of the court became final, or the finding was made in a contested case under the Administrative Procedure Act and the finding was not overturned on judicial review.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A person may be debarred from entering into a contract with the State if that person or any of its officers, partners, controlling stockholders, principals, or any other persons substantially involved in its contracting activities has admitted, in writing or under oath, acts or omissions that would constitute grounds for conviction or liability under any law described in §A of this regulation.</text> </paragraph> <paragraph num="C."> <text>A person may be debarred from entering into a contract with the State if the Board finds:</text> <paragraph num="(1)"> <text>That the person was established or operates in a manner designed to evade the application of, or to defeat the purpose of, this subtitle;</text> </paragraph> <paragraph num="(2)"> <text>That the person is a successor, assignee, subsidiary, or affiliate of a suspended or debarred person;</text> </paragraph> <paragraph num="(3)"> <text>One of the following violations of a contract provision that is sufficiently serious to justify debarment:</text> <paragraph num="(a)"> <text>The deliberate failure without good cause to perform in accordance with the specifications or within the time provided in a contract; or</text> </paragraph> <paragraph num="(b)"> <text>The failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts within the preceding 5 years unless the failure to perform or the unsatisfactory performance was caused by acts beyond the control of the person; or</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>That the person persistently fails to meet contract goals in the absence of mitigating factors under the criteria established under State Finance and Procurement Article, §14-305(c)(2), Annotated Code of Maryland; debarment under this subsection shall be for a period not exceeding 3 years.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A person may be debarred for any other cause the Board determines to be so serious as to affect the integrity of the State procurement process, including, for example and not by limitation, the failure to file the debarment affidavit required by State Finance and Procurement Article, §16-311, Annotated Code of Maryland, and COMAR 21.05.08.07 and 21.07.01.25, or the filing of an untruthful affidavit.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Debarment of Businesses by Operation of Law."> <paragraph num="A."> <text>A business is debarred to the same extent that a person is debarred if the person is:</text> <paragraph num="(1)"> <text>An officer, director, controlling shareholder, or partner of the business; or</text> </paragraph> <paragraph num="(2)"> <text>An employee of the business directly involved in the process of obtaining contracts with public bodies.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If a business is subject to debarment under this regulation, the Board shall notify the business that it is subject to debarment. Notice shall:</text> <paragraph num="(1)"> <text>Include a copy of the Board's final decision on debarment of the person associated with the business as an officer, director, controlling shareholder, partner, or employee directly involved in the process of obtaining contracts with public bodies; and</text> </paragraph> <paragraph num="(2)"> <text>Indicate that the business will be debarred to the same extent as the person as of 30 days from the business' receipt of the notice unless, before that date, the business establishes to the satisfaction of the Board that the debarred person no longer is associated with the business in any of the capacities described in §A of this regulation.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The business has a right to request a hearing upon receipt of the notice of debarment. If a hearing is requested:</text> <paragraph num="(1)"> <text>The hearing shall be held in accordance with COMAR 21.08.04.02; and</text> </paragraph> <paragraph num="(2)"> <text>The Board may stay debarment of the business until a final decision is made by the Board pursuant to COMAR 21.08.04.03.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Debarment under this regulation shall terminate if the business establishes to the satisfaction of the Board that the person no longer is associated with the business in any of the capacities described in §A of this regulation.</text> </paragraph> <paragraph num="E."> <text>If the business has been debarred under this regulation and wishes to establish that the business is entitled to termination of its debarment, the business shall notify the Board by certified mail that the person is no longer associated with the business in the capacities described in §A of this regulation. The Board may request that the Attorney General investigate the person's status with the business pursuant to State Finance and Procurement Article, §16-303, Annotated Code of Maryland, and make a recommendation to the Board.</text> </paragraph> <paragraph num="F."> <text>If the business requests a hearing to establish its right to termination of its debarment, the hearing shall be held in accordance with COMAR 21.08.04.02 and a final decision issued in accordance with COMAR 21.08.04.03.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Initiation of Debarment."> <paragraph num="A."> <text>If the Board receives information pursuant to State Finance and Procurement Article, §16-302, Annotated Code of Maryland, or otherwise is advised of information reasonably believed to constitute possible grounds for debarment of a person, the Board shall refer that information to the Attorney General.</text> </paragraph> <paragraph num="B."> <text>If the Attorney General receives information from the Board or otherwise that the Attorney General believes constitutes possible grounds for debarment of a person, the Attorney General shall investigate the information. If the Attorney General determines that a reasonable basis for the initiation of debarment proceedings exists, the Attorney General may institute debarment proceedings by filing an administrative complaint with the Board setting out:</text> <paragraph num="(1)"> <text>The name of the person or persons to be debarred;</text> </paragraph> <paragraph num="(2)"> <text>The conduct for which the person or persons should be debarred;</text> </paragraph> <paragraph num="(3)"> <text>The grounds for debarment.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The Attorney General shall send copies of the administrative complaint by certified mail to each person who is the subject of the complaint. The Attorney General shall also send copies to the Secretaries of Budget and Management, General Services, Public Safety and Correctional Services, Transportation, and the Chancellor of the University System of Maryland, each of whom may provide written comments to the Board including but not limited to whether the initiation of debarment or suspension of the person, or both, would preserve the integrity of the procurement process and be in the best interest of the State.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Suspension Pending Disbarment."> <paragraph num="A."> <text>At any time before a final decision on debarment is made, the Attorney General may recommend that the Board immediately suspend the person pending possible debarment.</text> </paragraph> <paragraph num="B."> <text>After considering the recommendation of the Attorney General, and any other pertinent information, the Board shall determine whether immediate suspension of the person is warranted pending the outcome of the debarment proceedings.</text> </paragraph> <paragraph num="C."> <text>If the Board determines that the Attorney General has a reasonable basis for beginning debarment proceedings, the Board may suspend the person pending the outcome of the proceedings.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Agreements Relating to Debarment."> <paragraph num="A."> <text>At any time before a debarment, a person may enter into an agreement with the Attorney General relating to debarment of the person.</text> </paragraph> <paragraph num="B."> <text>If an agreement is reached between the Attorney General and the person, the Attorney General shall present the agreement to the Board, together with any written comments of affected Department heads or their designees concerning the agreement.</text> </paragraph> <paragraph num="C."> <text>The Board may accept or reject the agreement between the Attorney General and the person or may defer decision until after the receipt of such additional information as may be requested by the Board or its designee.</text> </paragraph> <paragraph num="D."> <text>Acceptance of Debarment Agreement.</text> <paragraph num="(1)"> <text>Any agreement between the Attorney General and a person relating to debarment is not binding upon the State unless the Board accepts the agreement.</text> </paragraph> <paragraph num="(2)"> <text>If the Board accepts the agreement, the Board's acceptance shall constitute the Board's decision on debarment in the same manner and having the same effect as if there had been debarment proceedings pursuant to State Finance and Procurement Article, Title 16, Annotated Code of Maryland, and COMAR 21.08.04.</text> </paragraph> <paragraph num="(3)"> <text>If the Board rejects the agreement, the agreement may not be considered as an admission by the person in any subsequent debarment proceedings.</text> </paragraph> </paragraph> <paragraph num="E."> <text>The Board shall accept or reject the agreement within a reasonable time after receipt of the agreement from the Attorney General.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§11-205.1, 12-101, and 16-101—16-312; State Government Article, §§10-201—10-217; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 repealed and new Regulations .01—.07 adopted under a new chapter, COMAR 21.08.03 Debarment, effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective October 2, 2000 (27:19 Md. R. 1731); March 13, 2006 (33:5 Md. R. 523); March 12, 2007 (34:5 Md. R. 562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B, C amended effective October 2, 2000 (27:19 Md. R. 1731)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective October 2, 2000 (27:19 Md. R. 1731)</annotation> </annotations> </chapter> <chapter num="04" heading="Proceedings"> <regulation prefix="Regulation" num=".01" heading="Notice."> <text>Within a reasonable time after the receipt of the administrative complaint, the Board shall provide written notice by First Class mail to the person and by publication in eMaryland Marketplace indicating:</text> <paragraph num="A."> <text>The commencement of debarment proceedings pursuant to State Finance and Procurement Article, Title 16, Annotated Code of Maryland, and this chapter;</text> </paragraph> <paragraph num="B."> <text>The effective date of any suspension and that any suspension is for a temporary period pending the completion of debarment proceedings;</text> </paragraph> <paragraph num="C."> <text>The grounds for suspension and possible debarment;</text> </paragraph> <paragraph num="D."> <text>The effect of suspension and possible debarment;</text> </paragraph> <paragraph num="E."> <text>The person's right to request a hearing on suspension and possible debarment by written communication received by the Board within 30 days after the person receives the notice and that the request shall include response to the administrative complaint;</text> </paragraph> <paragraph num="F."> <text>The person's right to be represented by counsel at the hearing; and</text> </paragraph> <paragraph num="G."> <text>That the failure to request a hearing shall waive the person's right to a hearing and result in debarment.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Hearings."> <paragraph num="A."> <text>A person who fails to make a timely request for a hearing:</text> <paragraph num="(1)"> <text>Waives the right to a hearing and to any subsequent appeal; and</text> </paragraph> <paragraph num="(2)"> <text>Is debarred.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If a person subject to debarment proceedings requests a hearing, the Board may refer the case and transmit the record to the Office of Administrative Hearings, which shall appoint an administrative law judge who shall conduct the hearing within a reasonable time after receipt of the record from the Board.</text> </paragraph> <paragraph num="C."> <text>If the person has been debarred by operation of law pursuant to State Finance and Procurement Article, §16-202(a), Annotated Code of Maryland, and COMAR 21.08.03.01, or has been suspended pending the outcome of debarment proceedings, the administrative law judge shall provide a hearing within 45 days from the date of the Board's referral of the matter and transmission of the record to the Office of Administrative Hearings unless the person consents to a longer time period.</text> </paragraph> <paragraph num="D."> <text>The administrative law judge assigned by the Office of Administrative Hearings shall give notice of the hearing to the person pursuant to State Government Article, §10-205, Annotated Code of Maryland, and COMAR 23.01.03.03.</text> </paragraph> <paragraph num="E."> <text>The administrative law judge shall conduct the hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 23.01.03.</text> </paragraph> <paragraph num="F."> <text>Evidence.</text> <paragraph num="(1)"> <text>The Attorney General shall present evidence concerning the basis for debarment and the appropriate duration of debarment and may make a recommendation as to the duration of the proposed debarment.</text> </paragraph> <paragraph num="(2)"> <text>If the person has been debarred by operation of law pursuant to COMAR 21.08.03.01, the person may present evidence in its defense limited solely to whether the stated bases for debarment exist and the appropriate duration of debarment.</text> </paragraph> <paragraph num="(3)"> <text>If the proposed debarment is based upon the causes enumerated in COMAR 21.08.03.02 or .03, the person may present evidence on whether the stated bases for debarment exist and on the appropriate duration of debarment. The person may also present evidence in mitigation addressed to the following issues:</text> <paragraph num="(a)"> <text>The nature and seriousness of the act that caused the person to be subject to debarment;</text> </paragraph> <paragraph num="(b)"> <text>The time the act occurred;</text> </paragraph> <paragraph num="(c)"> <text>Whether and to what extent the person cooperated with authorities in their investigation of the matter;</text> </paragraph> <paragraph num="(d)"> <text>The conditions under which the person cooperated; and</text> </paragraph> <paragraph num="(e)"> <text>The conduct of the person since the act occurred.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>If a business has been debarred by operation of law pursuant to State Finance and Procurement Article, §16-307, Annotated Code of Maryland, and COMAR 21.08.03.04, the business may present evidence in its defense limited solely to whether the debarred person remains associated with the business as an officer, director, controlling shareholder, partner, or employee directly involved in the process of obtaining contracts with public bodies.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Decisions."> <paragraph num="A."> <text>The administrative law judge shall issue a proposed decision containing findings of fact and conclusions of law within 90 days after the hearing.</text> </paragraph> <paragraph num="B."> <text>The administrative law judge shall send the proposed decision, by certified mail, to the Attorney General and the persons subject to debarment and shall notify these parties that oral argument may be requested before the Board by any party adversely affected by the proposed decision.</text> </paragraph> <paragraph num="C."> <text>Within 15 days after receipt of the proposed decision, a party adversely affected by the proposed decision may file written exceptions to the proposed decision and may request oral argument before the Board as follows:</text> <paragraph num="(1)"> <text>A party that files written exceptions to the proposed decision or requests oral argument before the Board shall include in the exceptions or request precise references to those sections of the record that the party wishes the Board to review.</text> </paragraph> <paragraph num="(2)"> <text>References to the record, other than any transcript of testimony, shall be indicated as “R . . . ”, and references to any transcript of testimony as contained in the record shall be indicated as “T . . . ”.</text> </paragraph> <paragraph num="(3)"> <text>If a party fails to provide the references specified in §C(2) of this regulation, the Board may dismiss any request for oral argument and may base its review of the proposed decision on whatever portion of the record it considers appropriate.</text> </paragraph> </paragraph> <paragraph num="D."> <text>If oral argument is not requested, the Board shall issue its final decision within a reasonable time.</text> </paragraph> <paragraph num="E."> <text>If oral argument is requested, the Board shall notify the parties of the date, time, and place for the argument, which shall be held within a reasonable time of the receipt of a request for the oral argument.</text> </paragraph> <paragraph num="F."> <text>The Board shall issue a final decision, copies of which shall be mailed to all parties, by certified mail, within a reasonable time after the oral argument.</text> </paragraph> <paragraph num="G."> <text>In its final decision, the Board shall notify the person that the person is:</text> <paragraph num="(1)"> <text>Debarred, specifying:</text> <paragraph num="(a)"> <text>The reasons for debarment,</text> </paragraph> <paragraph num="(b)"> <text>The nature of the debarment sanctions applied, and</text> </paragraph> <paragraph num="(c)"> <text>The period of debarment; or</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Not debarred and that any suspension has been terminated as of the date of the Board's decision.</text> </paragraph> </paragraph> <paragraph num="H."> <text>All final decisions issued by the Board shall include findings of fact and conclusions of law in accordance with State Government Article, §10-221, Annotated Code of Maryland, which may incorporate by reference or be adopted from the proposed decision of the administrative law judge.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Scope of Sanctions."> <paragraph num="A."> <text>If a person is debarred based on grounds set forth in State Finance and Procurement Article, §16-202, Annotated Code of Maryland, and COMAR 21.08.03.01 or .02, the person may not be considered for the award of, be awarded, or perform, directly or indirectly, a contract with a public body during the period of debarment. Units shall immediately terminate any existing contracts with debarred persons effective on the date of debarment.</text> </paragraph> <paragraph num="B."> <text>If a person is debarred based on grounds set forth in State Finance and Procurement Article, §16-203, Annotated Code of Maryland, and COMAR 21.08.03.03, the person may not be considered for the award of, be awarded, or perform, directly or indirectly, a contract with the State during the period of the debarment. Units shall immediately terminate any existing contracts with debarred persons effective on the date of debarment.</text> </paragraph> <paragraph num="C."> <text>If a business is debarred pursuant to State Finance and Procurement Article, §16-307, Annotated Code of Maryland, and COMAR 21.08.03.04, as a result of the debarment of an officer, director, controlling shareholder, partner, or employee directly involved in its contracting activities, the debarment of the business shall be coextensive with that of the officer, director, controlling shareholder, partner, or employee directly involved in its contracting activities.</text> </paragraph> <paragraph num="D."> <text>In determining the scope or period of a person's debarment, the Board may impose such conditions on the person's State contract related activities as the Board considers appropriate, including, for example, and not by limitation, a deferred debarment date to give agencies sufficient time to transition to new contractors and appropriate monitoring of the person's current or future contracting activities with the State. If the Board does not specify a period of debarment, the time period of a debarment is indefinite.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Appeal."> <text>A party adversely affected by a final decision of the Board may obtain judicial review of the Board's decision as provided by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Termination of Suspension or Debarment."> <paragraph num="A."> <text>If a person's suspension or debarment is based upon a conviction that subsequently is reversed or otherwise is rendered void, the suspension or debarment shall terminate automatically.</text> </paragraph> <paragraph num="B."> <text>If a person is suspended pending debarment proceedings and the Board determines that an insufficient basis for commencing debarment proceedings exists, the suspension shall terminate automatically.</text> </paragraph> <paragraph num="C."> <text>A State debarment based solely on a federal debarment shall terminate automatically if:</text> <paragraph num="(1)"> <text>The federal debarment that is the basis for the State debarment is reversed or otherwise rendered void; and</text> </paragraph> <paragraph num="(2)"> <text>The person debarred provides to the Board sufficient legal documentation that the federal debarment has been reversed or otherwise rendered void.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A person who has been debarred under State Finance and Procurement Article, §16-202, Annotated Code of Maryland, and COMAR 21.08.03.01 or .02, may petition the Board for termination of the debarment at any time after 5 years from the date of debarment.</text> </paragraph> <paragraph num="E."> <text>A person who has been debarred under State Finance and Procurement Article, §16-203, Annotated Code of Maryland, and COMAR 21.08.03.03, may petition the Board for termination of the debarment after the expiration of the lesser of one-half the period of debarment or 5 years from the date of debarment.</text> </paragraph> <paragraph num="F."> <text>A petition for termination of debarment shall be served on the Board, the Attorney General, the Secretaries of Budget and Management, General Services, Public Safety and Correctional Services, and Transportation, and the Chancellor of the University System of Maryland, each of whom may comment to the Board on the petition.</text> </paragraph> <paragraph num="G."> <text>Petition for Termination of Debarment.</text> <paragraph num="(1)"> <text>Within 90 days after receiving a petition for termination of a debarment, the Board, in its discretion, shall determine whether to conduct a hearing regarding the petition and shall notify the person of the Board's decision.</text> </paragraph> <paragraph num="(2)"> <text>If the Board decides to conduct a hearing regarding a petition for termination of debarment, it may refer the matter to the Office of Administrative Hearings, which shall appoint a hearing officer to conduct a hearing in accordance with the procedures in Regulations .02 and .03 of this chapter.</text> </paragraph> <paragraph num="(3)"> <text>If the Board determines not to conduct a hearing regarding a petition for termination of debarment, it shall give written notice by certified mail to the person that the debarment is terminated or is continued.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§11-205.1, 12-101, and 16-101—16-312; State Government Article, §§10-201—10-217; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date:</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.07 adopted as an emergency provision effective July 28, 1982 (9:17 Md. R. 1701); emergency status extended at 9:20 Md. R. 1980; adopted permanently effective October 25, 1982 (9:21 Md. R. 2107)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01, .05—.07 amended effective January 2, 1983 (9:26 Md. R. 2574)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised as an emergency provision effective February 11, 1983 (10:4 Md. R. 314); emergency status extended at 10:8 Md. R. 723 (Emergency regulations are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised as an emergency provision effective April 30, 1983 (10:9 Md. R. 788); adopted permanently effective July 5, 1983 (10:13 Md. R. 1182)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.12, Debarment—Statutory Violations, repealed and new Regulations .01—.06, Proceedings, adopted effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective October 2, 2000 (27:19 Md. R. 1731); March 15, 2004 (31:5 Md. R. 451); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03H amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E amended effective March 15, 2004 (31:5 Md. R. 451)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective March 13, 2006 (33:5 Md. R. 523)</annotation> </annotations> </chapter> <chapter num="05" heading="Contested Cases" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: September 12, 1983 (10:18 Md. R. 1610)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01, .02, .04, .06B, and .08B and C amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective August 2, 1993 (20:15 Md. R. 1221)</annotation> </annotations> </chapter> <chapter num="06" heading="Conditional Suspension, Suspension and Debarment for Unsatisfactory Performance and Improper Conduct" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: August 11, 1986 (13:16 Md. R. 1828)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective August 2, 1993 (20:15 Md. R. 1221)</annotation> </annotations> </chapter> </subtitle> <subtitle num="09" heading="Contract Cost Principles and Procedures"> <chapter num="01" heading="General Regulations"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Actual costs” means all direct and indirect costs which have been incurred for labor performed, goods delivered, or construction built, as distinguished from allowable costs only.</text> </paragraph> <paragraph num="(2)"> <text>“Cost objective” means any unit of work such as a function, an organizational subdivision, or a contract for which provision is made to accumulate and measure separately the cost of processes, products, jobs, capitalized projects, and similar items. A final cost objective is one that has allocated to it both direct and indirect costs and, in the contractor's accumulation system, is one of the final accumulation points.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Applicability of Cost Principles."> <paragraph num="A."> <text>Limitation. These cost principles regulations are not applicable to:</text> <paragraph num="(1)"> <text>The establishment of prices under contracts awarded on the basis of competitive sealed bidding, or otherwise based on adequate price competition rather than the analysis of individual, specific cost elements, except that this subtitle does apply to the establishment of adjustments of price for equitable adjustments made under these contracts;</text> </paragraph> <paragraph num="(2)"> <text>Prices which are fixed by law or regulation; and</text> </paragraph> <paragraph num="(3)"> <text>Prices which are based on established catalog prices or established market prices.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Application.</text> <paragraph num="(1)"> <text>The cost principles and procedures contained in this subtitle shall be used to determine the allowability of incurred costs for the purpose of reimbursing costs under contract provisions which provide for the reimbursement of costs, provided that any deviation from these cost principles may be made as provided in Regulation .23.</text> </paragraph> <paragraph num="(2)"> <text>The cost principles and procedures set forth in this subtitle shall be used as guidance in:</text> <paragraph num="(a)"> <text>The establishment of contract cost estimates and prices under contracts awarded on the basis of competitive sealed proposals where the award may not be based on adequate price competition, sole source emergency or small procurement procedures;</text> </paragraph> <paragraph num="(b)"> <text>The establishment of price adjustments for equitable adjustments under contracts that have been let on the basis of competitive sealed bidding, competitive sealed proposals, or otherwise based on adequate price competition;</text> </paragraph> <paragraph num="(c)"> <text>The pricing of termination for convenience settlements; and</text> </paragraph> <paragraph num="(d)"> <text>Any other situation in which cost analysis is used.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Allowable Costs."> <paragraph num="A."> <text>General. Any contract cost proposed for estimating purposes or invoiced for cost-reimbursement purposes shall be allowable to the extent provided in the contract and, if inconsistent with these cost principles, approved as a deviation under Regulation .23. The contract shall provide that the total allowable cost of a contract is the sum of the allowable direct costs actually incurred in the performance of the contract in accordance with its terms, plus the properly allocable portion of the allowable indirect costs, subject to any specific contract limitations, less any applicable credits (such as discounts, rebates, refunds, and property disposal income), plus profit.</text> </paragraph> <paragraph num="B."> <text>Accounting Consistency. All costs shall be accounted for in accordance with generally accepted accounting principles. In pricing a proposal, a contractor shall estimate costs in a manner consistent with its cost accounting practices used in accumulating and reporting costs to other similar activities.</text> </paragraph> <paragraph num="C."> <text>When Allowable. The contract shall provide that costs shall be allowed to the extent they are:</text> <paragraph num="(1)"> <text>Reasonable;</text> </paragraph> <paragraph num="(2)"> <text>Allocable;</text> </paragraph> <paragraph num="(3)"> <text>Lawful under any applicable statute;</text> </paragraph> <paragraph num="(4)"> <text>Not unallowable under Regulations .06 through .19; and</text> </paragraph> <paragraph num="(5)"> <text>In the case of costs invoiced for reimbursement, actually incurred or accrued and accounted for in accordance with generally accepted accounting principles.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Reasonable Costs."> <paragraph num="A."> <text>Any cost is reasonable if, in its nature or amount, it does not exceed that which would be incurred by an ordinarily prudent person in the conduct of competitive business in that industry.</text> </paragraph> <paragraph num="B."> <text>In determining the reasonableness of a given cost, consideration shall be given to:</text> <paragraph num="(1)"> <text>Requirements imposed by the contract terms and conditions;</text> </paragraph> <paragraph num="(2)"> <text>Whether the cost is of a type generally recognized as ordinary and necessary for the conduct of the contractor's business or the performance of the contract;</text> </paragraph> <paragraph num="(3)"> <text>The restraints inherent in, and the requirements imposed by, these factors as generally accepted sound business practices, arms' length bargaining, and federal and State laws and regulations;</text> </paragraph> <paragraph num="(4)"> <text>The action that a prudent business manager would take under the circumstances, including general public policy and considering responsibilities to the owners of the business, employees, customers, and the State;</text> </paragraph> <paragraph num="(5)"> <text>Significant deviations from the contractor's established practices which may unjustifiably increase the contract costs; and</text> </paragraph> <paragraph num="(6)"> <text>Any other relevant circumstances.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Allocable Costs."> <paragraph num="A."> <text>General. A cost is allocable if it is assignable or chargeable to one or more cost objectives in accordance with relative benefits received and if it:</text> <paragraph num="(1)"> <text>Is incurred specifically for the contract;</text> </paragraph> <paragraph num="(2)"> <text>Benefits both the contract and other work, and can be distributed to both in reasonable proportion to the benefits received; or</text> </paragraph> <paragraph num="(3)"> <text>Is necessary to the overall operation of the business, although a direct relationship to any particular cost objective may not be evident.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Allocation Consistency. Costs are allocable as direct or indirect costs. Similar costs (those incurred for the same purpose, in like circumstances) shall be treated consistently either as direct costs or indirect costs except as provided by these regulations. When a cost is treated as a direct cost in respect to one cost objective, it and all similar costs shall be treated as a direct cost for all cost objectives. Further, all costs similar to those included in any indirect cost pool shall be treated as indirect costs. All distributions to cost objectives from a cost pool shall be on the same basis.</text> </paragraph> <paragraph num="C."> <text>Direct Costs. A direct cost is any cost which can be identified specifically with a particular final cost objective. A direct cost shall be allocated only to its specific cost objective. To be allowable, a direct cost shall be incurred in accordance with the terms of the contract.</text> </paragraph> <paragraph num="D."> <text>Indirect Costs.</text> <paragraph num="(1)"> <text>An indirect cost is one identified with no specific final cost objective or with more than one final cost objective. Indirect costs are those remaining to be allocated to the several final cost objectives after direct costs have been determined and charged directly to the contract or other work as appropriate. Any direct costs of minor dollar amount may be treated as indirect costs, if this treatment produces substantially the same results as treating the cost as a direct cost.</text> </paragraph> <paragraph num="(2)"> <text>Indirect costs shall be accumulated into logical cost groups (or pools), with consideration of the reasons for incurring the costs. Each group should be distributed to cost objectives benefiting from the costs in the group. Each indirect cost group shall be distributed to the cost objectives substantially in proportion to the benefits received by the cost objectives. The number and composition of the groups and the method of distribution should not unduly complicate indirect cost allocation where substantially the same results could be achieved through less precise methods.</text> </paragraph> <paragraph num="(3)"> <text>The contractor's method of distribution may require examination when any one of the following apply:</text> <paragraph num="(a)"> <text>Any substantial difference exists between the cost patterns of the work performed under the contract and the contractor's other work.</text> </paragraph> <paragraph num="(b)"> <text>Any significant change occurs in the nature of the business, the extent of subcontracting, fixed asset improvement programs, inventories, the volume of sales and production, manufacturing processes, the contractor's products, or other relevant circumstances.</text> </paragraph> <paragraph num="(c)"> <text>Indirect cost groups developed for a contractor's primary location are applied to off-site locations. Separate cost groups for costs allocable to off-site locations may be necessary to distribute the contractor's costs on the basis of the benefits accruing to the appropriate cost objectives.</text> </paragraph> <paragraph num="(d)"> <text>The base period for indirect cost allocation is the one in which the costs are incurred and accumulated for distribution to work performed in that period. Normally, the base period is the contractor's fiscal year. A different base period may be appropriate under unusual circumstances. In these cases, an appropriate period should be agreed to in advance.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Advertising."> <paragraph num="A."> <text>Advertising costs are those incurred in using any advertising media when the advertiser has control over the form and content of what will appear, the media in which it will appear, or when it will appear. Advertising media includes newspapers, magazines, radio, television, direct mail, trade papers, billboards, window displays, conventions, exhibits, free samples, and the like. All advertising costs except those set forth below are unallowable.</text> </paragraph> <paragraph num="B."> <text>The only allowable advertising costs are those for:</text> <paragraph num="(1)"> <text>The recruitment of personnel;</text> </paragraph> <paragraph num="(2)"> <text>The procurement of scarce items;</text> </paragraph> <paragraph num="(3)"> <text>The disposal of scrap or surplus materials;</text> </paragraph> <paragraph num="(4)"> <text>The listing of a business's name and location in a classified directory;</text> </paragraph> <paragraph num="(5)"> <text>Notices or advertisements required by law or regulations; and</text> </paragraph> <paragraph num="(6)"> <text>The delivery of public service.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Bad Debts."> <text>Bad debts include losses arising from uncollectible accounts and other claims, such as dishonored checks, uncollected employee advances, and related collection and legal costs. All bad debt costs are unallowable.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Contingencies."> <paragraph num="A."> <text>Contingency costs are contributions to a reserve account for unforeseen costs. Contingency costs are unallowable except as provided below.</text> </paragraph> <paragraph num="B."> <text>For the purpose of establishing a contract cost estimate or price in advance of performance of the contract, recognition of uncertainties within a reasonably anticipated range of costs may be required and is not prohibited by this regulation. However, if contract clauses are present which serve to remove risks from the contractor, a contingency factor for these risks may not be included in the contract. Further, contributions to a reserve for self-insurance in lieu of, and not in excess of, commercially available liability insurance premiums are allowable as an indirect charge.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Depreciation and Use Allowances."> <paragraph num="A."> <text>Depreciation and use allowances, that is, the allowance made for fully depreciated assets, are allowable to compensate contractors for the use of buildings, capital improvements, and equipment or for the provision of these facilities on a standby basis for subsequent use when these facilities are temporarily idle because of suspensions or delays not caused by the contractor, not reasonably foreseeable, and not otherwise avoidable when the contract was awarded. Depreciation is a method of allocating the acquisition cost of an asset to periods of its useful life. Useful life refers to the asset's period of economic usefulness in the particular contractor's operation as distinguished from its physical life. Use allowances provide compensation in lieu of depreciation or other equivalent costs. Consequently, these two methods may not be combined to compensate contractors for the use of any one type of property.</text> </paragraph> <paragraph num="B."> <text>The computation of depreciation or use allowances shall be based on acquisition costs. When the acquisition costs are unknown, reasonable estimates may be used.</text> </paragraph> <paragraph num="C."> <text>Depreciation shall be computed using any generally accepted method, if the method is consistently applied and results in equitable charges considering the use of the property. The straight-line method of depreciation is preferred unless the circumstances warrant some other method. However, a State agency shall accept any method which is accepted by the Internal Revenue Service.</text> </paragraph> <paragraph num="D."> <text>In order to compensate the contractor for use of depreciated, contractor-owned property which has been fully depreciated on the contractor's books and records and is being used in the performance of a contract, use allowances may be allowed as a cost of that contract. Use allowances are allowable, if they are computed in accordance with an established industry or government schedule or other method mutually agreed upon by the parties. If a schedule is not used, factors to consider in establishing the allowance are the original cost, remaining estimated useful life, the reasonable fair market value, and the effect of any increased maintenance or decreased efficiency.</text> </paragraph> <paragraph num="E."> <text>In accordance with §A, costs of idle facilities may be allowable for a reasonable period of time, ordinarily not to exceed 1 year, depending on the initiative taken to use, lease, or dispose of these facilities.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Entertainment."> <paragraph num="A."> <text>Entertainment costs include costs of social activities, and related incidental costs such as meals, beverages, lodging, transportation, and gratuities. Entertainment costs are unallowable.</text> </paragraph> <paragraph num="B."> <text>Nothing in these regulations shall make unallowable a legitimate expense for employee morale, health, welfare, food service, or lodging costs; except that, where a net profit is generated by these services, it shall be treated as a credit as provided in Regulation .20. This regulation does not make unallowable costs incurred for meetings or conferences, including, but not limited to, costs of food, rental facilities, and transportation where the primary purpose of incurring the cost is the dissemination of technical information or the stimulation of production.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Fines and Penalties."> <text>Fines and penalties include all costs incurred as the result of violations of, or failure to comply with, federal, State, and local laws and regulations. Fines and penalties are unallowable costs unless incurred as a direct result of compliance with specific provisions of the contract.</text> </regulation> <regulation prefix="Regulation" num=".12" heading="Gifts, Contributions, and Donations."> <text>A gift, contribution, and donation is property transferred to another person without the other person providing return consideration of equivalent value. Gifts, contributions, and donations are unallowable.</text> </regulation> <regulation prefix="Regulation" num=".13" heading="Losses Incurred Under Other Contracts."> <text>A loss is the excess of costs over income earned under a particular contract. Losses may include both direct and indirect costs. A loss incurred under one contract may not be charged to any other contract.</text> </regulation> <regulation prefix="Regulation" num=".14" heading="Material Costs."> <paragraph num="A."> <text>Material costs are the costs of all supplies, including raw materials, parts, and components (whether acquired by purchase from an outside source or acquired by transfer from any division, subsidiary, or affiliate under the common control of the contractor), which are acquired in order to perform the contract. Material costs are allowable, subject to §§B and C. In determining material costs, consideration shall be given to reasonable spoilage, reasonable inventory losses, and reasonable overages.</text> </paragraph> <paragraph num="B."> <text>Material costs shall include adjustments for all available discounts, refunds, rebates, and allowances which the contractor reasonably should take under the circumstances, and for credits for proceeds the contractor received or reasonably should receive from salvage and material returned to suppliers.</text> </paragraph> <paragraph num="C."> <text>Allowance for all materials transferred from any division (including the division performing the contract), subsidiary, or affiliate under the common control of the contractor shall be made on the basis of costs incurred by the transferor (determined in accordance with this subtitle), except the transfer may be made at the established price if the price of materials is not determined to be unreasonable by the procurement officer, the price is not higher than the transferor's current sales price to its most favored customer for a similar quantity under similar payment and delivery conditions, and the price is established either by the:</text> <paragraph num="(1)"> <text>Established catalog price; or</text> </paragraph> <paragraph num="(2)"> <text>Lowest price offer obtained as a result of a competitive procurement conducted with other businesses that normally produce the item in similar quantities.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".15" heading="Taxes."> <paragraph num="A."> <text>Except as limited below, all allocable taxes which the contractor is required to pay and which are paid and accrued in accordance with generally accepted accounting principles are allowable.</text> </paragraph> <paragraph num="B."> <text>The following costs are unallowable:</text> <paragraph num="(1)"> <text>Federal, State and local income taxes and federal excess profit taxes;</text> </paragraph> <paragraph num="(2)"> <text>All taxes from which the contractor could have obtained an exemption, but failed to do so, except where the administrative cost of obtaining the exemption would have exceeded the tax savings realized from the exemption;</text> </paragraph> <paragraph num="(3)"> <text>Any interest, fines, or penalties paid on delinquent taxes unless incurred at the written direction of the procurement officer; and</text> </paragraph> <paragraph num="(4)"> <text>Income tax accruals designed to account for the tax effects of differences between taxable income and pretax income as reflected by the contractor's books of account and financial statements.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Any refund of taxes which were allowed as a direct cost under the contract shall be credited to the contract. Any refund of taxes which were allowed as an indirect cost under a contract shall be credited to the indirect cost group applicable to any contracts being priced or costs being reimbursed during the period in which the refund is made.</text> </paragraph> <paragraph num="D."> <text>Direct government charges for services, such as water, or capital improvements, such as sidewalks, are not considered taxes and are allowable costs.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".16" heading="Compensation for Personal Services."> <paragraph num="A."> <text>Compensation for personal services includes, but is not limited to salaries, wages, directors' and executive committee members' fees, bonuses (including stock bonuses), incentive awards, employee stock options, employee insurance, fringe benefits, contributions to pension, annuity and management employee incentive compensation plans, allowances for off-site pay, incentive pay, location allowances, hardship pay, and cost of living differential, paid or accrued, in any form.</text> </paragraph> <paragraph num="B."> <text>These costs are allowable to the extent that total compensation of individual employees is reasonable for services rendered. Compensation is reasonable to the extent that the total amount paid or accrued is commensurate with compensation paid under the contractor's established policy and conforms generally to compensation paid by other firms of the same size, in the same industry, or in the same geographic area, for similar services.</text> </paragraph> <paragraph num="C."> <text>Determination should be made that compensation to owners of closely held corporations, partners, sole proprietors, or members of the immediate families thereof, is reasonable for the actual personal services rendered, rather than a distribution of profits.</text> </paragraph> <paragraph num="D."> <text>Bonuses and incentive compensation are allowable to the extent that the overall compensation is determined to be reasonable and the costs are paid or accrued pursuant to an agreement entered into in good faith between the contractor and the employees before the services were rendered, or pursuant to an established plan followed by the contractor so consistently as to imply, in effect, an agreement to make payment.</text> </paragraph> <paragraph num="E."> <text>Deferred Compensation.</text> <paragraph num="(1)"> <text>Deferred compensation includes all remuneration, in whatever form, for which the employee is not paid until after the lapse of a stated period of years or the occurrence of other events as provided in the plans, except that it does not include normal end of accounting period accruals. It includes contributions to pension, annuity, stock bonus, and profit sharing plans, contributions to disability, withdrawal, insurance, survivorship, and similar benefit plans, and other deferred compensation, whether paid in cash or in stock.</text> </paragraph> <paragraph num="(2)"> <text>Deferred compensation is allowable to the extent that it is:</text> <paragraph num="(a)"> <text>Reasonable;</text> </paragraph> <paragraph num="(b)"> <text>Paid pursuant to an agreement between the contractor and employees before the services are rendered or pursuant to a plan established and consistently applied; and</text> </paragraph> <paragraph num="(c)"> <text>Deductible for the same fiscal year for federal income tax purposes.</text> </paragraph> </paragraph> </paragraph> <paragraph num="F."> <text>Costs of fringe benefits, such as pay for vacations, holidays, sick leave, military leave, employee insurance, and supplement unemployment benefit plans, are allowable to the extent required by law, employer-employee agreement, or an established policy of the contractor.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".17" heading="Rental and Leasing Costs for Organizations under Common Control."> <paragraph num="A."> <text>Charges in the nature of rent between any division, subsidiary, or organization under common control are allowable to the extent the charges do not exceed the allowable costs of ownership of the lessor. In determining the cost of ownership, items such as depreciation, taxes, insurance, and maintenance, shall be considered.</text> </paragraph> <paragraph num="B."> <text>Rental costs of personal property leased from any division, subsidiary, or organization under common control which has an established practice of leasing the same or similar property to unaffiliated leases, are allowable provided that they are reasonable. Factors to be considered with respect to reasonableness may include rental costs of comparable property, market condition in the area, the type, life expectancy, condition, and value of the property leased, and other alternatives available.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".18" heading="Reimbursement for Direct Expenses."> <text>Direct expenses include meal subsistence, vehicle mileage, other transportation costs, lodging and certain other direct expenses. Direct reimbursement of necessary expenses, if provided for by the procurement officer, are allowable only to the level of the actual cost of the necessary expense, but may not be more liberal than the current State Standard Travel Regulations unless approved in writing by the Secretary of Budget and Management before expenditure.</text> </regulation> <regulation prefix="Regulation" num=".19" heading="Costs Requiring Prior Approval to be Allowable as Direct Costs."> <paragraph num="A."> <text>General. The costs described in this regulation are allowable as direct costs to cost-reimbursement type contracts to the extent that they have been approved in advance by the procurement officer. In other situations the allowability of these costs shall be determined in accordance with general standards set out in these cost principles.</text> </paragraph> <paragraph num="B."> <text>Precontract Costs. Precontract costs are those incurred in anticipation of, and prior to, the effective date of the contract. These costs are allowable to the extent that they would have been allowable if incurred after the date of the contract. In the case of a cost-reimbursement type contract, a special provision shall be inserted in the contract setting forth the period of time and maximum amount of cost which will be covered as allowable precontract costs.</text> </paragraph> <paragraph num="C."> <text>Bid and Proposal Costs. Bid and proposal costs are the costs incurred in preparing, submitting, and supporting bids and proposals. Reasonable ordinary bid and proposal costs are allowable as indirect costs in accordance with these cost principles regulations. Bid and proposal costs are allowable as direct costs only to the extent that they are specifically permitted by a provision of the contract or solicitation document. When bid and proposal costs are allowable as direct costs, to avoid double accounting, the same bid and proposal costs may not be charged as indirect costs.</text> </paragraph> <paragraph num="D."> <text>Insurance.</text> <paragraph num="(1)"> <text>Ordinary and necessary insurance costs are normally allowable as indirect costs. Direct insurance costs are the costs of obtaining insurance in connection with performance of the contract or contributions to a reserve account for the purpose of self-insurance. Self-insurance contributions are allowable only to the extent of the cost to the contractor to obtain similar insurance.</text> </paragraph> <paragraph num="(2)"> <text>Insurance costs may be approved as a direct cost only if the insurance is specifically required for the performance of the contract.</text> </paragraph> <paragraph num="(3)"> <text>Actual losses which should reasonably have been covered by permissible insurance or were expressly covered by self- insurance are unallowable unless the parties expressly agree otherwise in the terms of the contract.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Litigation Costs. Litigation costs include all filing fees, legal fees, expert witness fees, and all other costs involved in litigating claims in court or before the Appeals Board or the Board. Litigation costs incident to the contract are allowable as indirect costs in accordance with these cost principles regulations except that costs incurred in litigation by or against the State are unallowable.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".20" heading="Applicable Credits."> <paragraph num="A."> <text>Definitions and Examples. Applicable credits are receipts or price reductions which offset or reduce expenditures allocable to contracts as direct or indirect costs. Examples include purchase discounts, rebates, allowances, recoveries or indemnification for losses, sale of scrap and surplus equipment and materials, adjustments for overpayments or erroneous charges, and income from employee recreational or incidental services and food sales.</text> </paragraph> <paragraph num="B."> <text>Reducing Costs. Credits shall be applied to reduce related direct or indirect costs.</text> </paragraph> <paragraph num="C."> <text>Refund. The State shall be entitled to a cash refund if the related expenditures have been paid to the contractor under a cost-reimbursement type contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".21" heading="Advance Agreements."> <paragraph num="A."> <text>Purpose. Both the State and the contractor should seek to avoid disputes and litigation arising from potential problems by providing in the terms of the solicitation and the contract the treatment to be accorded special or unusual costs which are expected to be incurred.</text> </paragraph> <paragraph num="B."> <text>Form Required. Advance agreements may be negotiated either before or after contract award, depending upon when the parties realize the cost may be incurred, but shall be negotiated before a significant portion of the cost covered by the agreement has been incurred. Advance agreements shall be in writing, executed by both contracting parties, and incorporated in the contract.</text> </paragraph> <paragraph num="C."> <text>Limitation on Costs Covered. An advance agreement may not provide for any treatment of costs inconsistent with these costs principles regulations unless a determination has been made pursuant to Regulation .23.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".22" heading="Use of Federal Costs Principles."> <paragraph num="A."> <text>Cost Negotiations. In dealing with contractors operating according to federal cost principles, such as Defense Acquisition Regulations, Section 15, or Federal Procurement Regulations, Part 1-15, the procurement officer, after notifying the contractor, may use the federal cost principles as guidance in contract negotiations, subject to §B.</text> </paragraph> <paragraph num="B."> <text>Incorporation of Federal Cost Principles; Conflicts Between Federal Principles and This Subtitle. All requirements set forth in federal assistance instruments applicable to contracts let by the State under a federal assistance program shall be satisfied. Therefore, to the extent that the cost principles which are specified in the assistance instrument conflict with the cost principles issued pursuant to this subtitle, the former shall control.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".23" heading="Authority to Deviate from Cost Principles."> <text>When the best interest of the State would be served by a deviation, the procurement officer may deviate from the cost principles set forth in these regulations, if a written determination is made by the procurement officer specifying the reasons for the deviation. A copy of the determination shall be filed promptly with the agency head and the determination shall be effective only upon approval by the agency head and upon incorporation into the contract. However, all costs shall be reasonable, lawful, allocable, and accounted for in accordance with generally accepted accounting principles to be reimbursed, and a deviation may not contravene this principle. After approval of the determination by the agency head, and the appropriate control authority, a copy of the determination shall be forwarded to the Board for informational purposes.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 13-213, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01, .02, .14C, .18, and .23 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> </subtitle> <subtitle num="10" heading="Administrative and Civil Remedies"> <chapter num="01" heading="Exhaustion of Administrative Remedies and Judicial Review"> <regulation prefix="Regulation" num=".01" heading="Exhaustion of Administrative Remedies."> <text>An aggrieved party shall exhaust all administrative remedies provided in this subtitle before seeking judicial review.</text> </regulation> <regulation prefix="Regulation" num=".02" heading="Judicial Review."> <text>A decision of the Appeals Board is subject to judicial review in accordance with the provisions of the Administrative Procedure Act governing contested cases.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 15-201—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> </annotations> </chapter> <chapter num="02" heading="Protests"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Interested party” means an actual or prospective bidder, offeror, or contractor that may be aggrieved by the solicitation or award of a contract, or by the protest.</text> </paragraph> <paragraph num="(2)"> <text>“Protest” means a complaint relating to the solicitation or award of a procurement contract.</text> </paragraph> <paragraph num="(3)"> <text>“Protester” means any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or the award of a contract and who files the protest.</text> </paragraph> <paragraph num="(4)"> <text>“Public Body” means:</text> <paragraph num="(a)"> <text>The State,</text> </paragraph> <paragraph num="(b)"> <text>A county, municipal corporation, or other political subdivision;</text> </paragraph> <paragraph num="(c)"> <text>A public instrumentality; or</text> </paragraph> <paragraph num="(d)"> <text>Any governmental unit authorized to award a contract.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>“Reviewing authority” means the procurement agency head or designee.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Filing of Protest."> <paragraph num="A."> <text>An interested party may protest to the appropriate procurement officer against the award or the proposed award of a contract subject to this title, including awards subject to the veteran-owned small business enterprise program set forth in COMAR 21.11.12.</text> </paragraph> <paragraph num="A-1."> <text>An interested party may not protest:</text> <paragraph num="(1)"> <text>An unintentional violation of State Finance and Procurement Article, §17-502, Annotated Code of Maryland; or</text> </paragraph> <paragraph num="(2)"> <text>Verification of a veteran-owned small business enterprise by the Center for Veterans Enterprise of the United States Department of Veterans Affairs.</text> </paragraph> </paragraph> <paragraph num="A-2."> <text>An unsuccessful bidder or any other person may not protest the award of a contract or contract renewal on the basis of a false certification regarding investments in Iran delivered to a public body pursuant to State Finance and Procurement Article, §17-705, Annotated Code of Maryland. This subsection does not prohibit a public body from filing a protest objecting to the award of a contract or contract renewal on the basis of a false certification.</text> </paragraph> <paragraph num="B."> <text>The protest shall be in writing and addressed to the procurement officer at either:</text> <paragraph num="(1)"> <text>The physical address specified in the solicitation; or</text> </paragraph> <paragraph num="(2)"> <text>The e-mail address specified in the solicitation.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A protest:</text> <paragraph num="(1)"> <text>Shall be filed within the appropriate time in Regulation .03 of this chapter; and</text> </paragraph> <paragraph num="(2)"> <text>Shall be filed and delivered either:</text> <paragraph num="(a)"> <text>By hand, the U.S. Postal Service, or a courier service; or</text> </paragraph> <paragraph num="(b)"> <text>By e-mail.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Time for Filing."> <paragraph num="A."> <text>A protest based upon alleged improprieties in a solicitation that are apparent before bid opening or the closing date for receipt of initial proposals shall be filed before bid opening or the closing date for receipt of initial proposals. For procurement by competitive sealed proposals, alleged improprieties that did not exist in the initial solicitation but which are subsequently incorporated in the solicitation shall be filed not later than the next closing date for receipt of proposals following the incorporation.</text> </paragraph> <paragraph num="B."> <text>In cases other than those covered in §A, protests shall be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier.</text> </paragraph> <paragraph num="C."> <text>The term “filed” as used in §A or §B means receipt by the procurement officer. Protesters are cautioned that protests should be transmitted or delivered in the manner that shall assure earliest receipt. A protest received by the procurement officer after the time limits prescribed in §A or §B may not be considered.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Form."> <text>To expedite handling of protests, the front of the envelope or, in the event of an electronic submission, the subject line should be labeled “Protest”. The written protest shall include as a minimum the following:</text> <paragraph num="A."> <text>The name and address of the protester;</text> </paragraph> <paragraph num="B."> <text>Appropriate identification of the procurement, and, if a contract has been awarded, its number if known;</text> </paragraph> <paragraph num="C."> <text>A statement of reasons for the protest; and</text> </paragraph> <paragraph num="D."> <text>Supporting exhibits, evidence, or documents to substantiate the reasons for the protest unless not available within the filing time, in which case the expected availability date shall be indicated.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Notification of the Office of the Attorney General."> <text>The procurement officer shall submit a copy of the protest to the Office of the Attorney General upon receipt of the protest and, unless clearly inappropriate, shall consult with legal counsel.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Requested Information Time for Filing."> <text>Any additional information or substantiation requested by the procurement officer shall be submitted within 5 days after receipt of notification or such other time as the procurement officer may specify in order to expedite consideration of the protest. Failure of any party to comply with a request for information or substantiation by the procurement officer may result in a resolution of the protest without consideration of any response to the request that is not timely filed.</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Making Information on Protests Available."> <text>Upon written request, the procurement officer shall make available to any interested party information submitted by the protester that bears on the substance of the protest except when information is confidential, or otherwise is permitted or required to be withheld by law. Persons who wish to keep information submitted by them confidential shall so request by specifically identifying the information within documents submitted, and indicating on the front page of each document that it contains information not subject to disclosure.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Negotiation with Interested Parties."> <text>The procurement officer may conduct discussions and, if appropriate, negotiations with the protester or any other interested party and may resolve the protest by agreement with any one or more interested parties. The agreement shall be in writing and shall be subject to the approval of the reviewing authority and the Office of the Attorney General.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Decision by the Procurement Officer and Reviewing Authority."> <paragraph num="A."> <text>Time for Decisions. A decision on a protest shall be made by the procurement officer in writing as expeditiously as possible after receiving all relevant, requested information.</text> </paragraph> <paragraph num="B."> <text>The decision of the procurement officer shall be reviewed by the reviewing authority and appropriate legal counsel. The reviewing authority may approve, modify, or disapprove the procurement officer's decision. In disapproving a decision, the reviewing authority may order the procurement officer to effect resolution. Unless the protest is remanded to the procurement officer, the decision of the reviewing authority is the final action by the procurement agency.</text> </paragraph> <paragraph num="C."> <text>The decision shall include:</text> <paragraph num="(1)"> <text>A description of the controversy;</text> </paragraph> <paragraph num="(2)"> <text>A statement of the decision, with supporting material;</text> </paragraph> <paragraph num="(3)"> <text>If the protest is not sustained, a paragraph substantially as follows: “This decision is the final action of this agency. This decision may be appealed to the Maryland State Board of Contract Appeals in accordance with COMAR 21.10.07.02. If you decide to take such an appeal, you must file written notice of appeal to the Appeals Board within 10 days from the date you receive this decision.” This paragraph also shall include the current address of the Appeals Board.</text> </paragraph> </paragraph> <paragraph num="D."> <text>The procurement officer shall furnish a copy of the decision to the protester and all other interested parties, by certified mail, return receipt requested, or by any other method that provides evidence of its receipt.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Time for Filing Appeal."> <paragraph num="A."> <text>Protesters are required to seek resolution of their complaints initially with the procurement agency. A subsequent appeal by an interested party to the Appeals Board shall be filed within 10 days of receipt of notice of the final procurement agency action.</text> </paragraph> <paragraph num="B."> <text>An appeal received by the Appeals Board after the time prescribed in §A of this regulation may not be considered unless it was sent by registered or certified mail not later than the fifth day before the final date for filing an appeal as specified in §A of this regulation. A date affixed by postage meter will not be considered as evidence of the actual mailing date. The only acceptable evidence to establish the date of mailing shall be the U.S. Postal Service postmark on the wrapper or on the original receipt from the U.S. Postal Service. If the postmark is illegible, the appeal shall be deemed to have been filed when received by the Appeals Board.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Awards of Contracts Pending Protests and Appeals."> <paragraph num="A."> <text>If the authority to award a contract has not been delegated to a department pursuant to COMAR 21.02.01.04, and a timely protest or appeal has been filed, the contract may be executed only if either:</text> <paragraph num="(1)"> <text>The Board of Public Works finds that execution of the contract without delay is necessary to protect substantial State interests; or</text> </paragraph> <paragraph num="(2)"> <text>The Appeals Board issues a final decision concerning the appeal. If a contract is to be executed pursuant to §A(1) of this regulation, the procurement agency shall so notify the Appeals Board.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If the authority to award a contract has been delegated to a department pursuant to COMAR 21.02.01.04, and a timely protest or appeal has been filed, the contract may be executed only if either:</text> <paragraph num="(1)"> <text>The head of the procurement agency or designee makes a determination that execution of the contract without delay is necessary to protect substantial State interests; or</text> </paragraph> <paragraph num="(2)"> <text>The Appeals Board issues a final decision concerning the appeal. If a contract is to be executed pursuant to §B(1) of this regulation, the procurement agency shall notify the Appeals Board of its action and shall also advise the Board of Public Works by appropriate notation when the item is reported to the Board on the department's Procurement Agency Activity Report (PAAR).</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 15-201—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended and .10 adopted effective August 15, 1983 (10:16 Md. R. 1454)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective February 23, 2009 (36:4 Md. R. 355); July 23, 2012 (39:14 Md. R. 839)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A-1 adopted effective July 23, 2012 (39:14 Md. R. 839)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A-1 amended effective August 13, 2018 (45:16 Md. R. 776)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A-2 adopted effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective March 3, 2025 (52:4 Md R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C adopted effective October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended effective June 29, 2020 (47:13 Md. R. 643); March 3, 2025 (52:4 Md R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03D adopted effective October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03D repealed effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10B amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> </annotations> </chapter> <chapter num="03" heading="Bid Protests Concerning Architectural Services and Engineering Services Contracts" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 adopted effective April 21, 1997 (24:8 Md. R. 617)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective August 13, 2018 (45:16 Md. R. 776)</annotation> </annotations> </chapter> <chapter num="04" heading="Contract Claims and Disputes"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Claim” means a complaint by a contractor or by a procurement agency relating to a contract subject to this title, except a real property lease.</text> </paragraph> <paragraph num="(2)"> <text>“Reviewing authority” means:</text> <paragraph num="(a)"> <text>With respect to the Department of Transportation, the Administrator or designee;</text> </paragraph> <paragraph num="(b)"> <text>With respect to any other procurement agency, the agency head or designee.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Filing of Claim by Contractor."> <paragraph num="A."> <text>Unless a lesser period is prescribed by law or by contract, a contractor shall file a written notice of a claim relating to a contract with the appropriate procurement officer within 30 days after the basis for the claim is known or should have been known, whichever is earlier.</text> </paragraph> <paragraph num="B."> <text>Contemporaneously with or within 90 days of the filing of a notice of a claim on a construction contract, or 30 days of this filing on a nonconstruction contract, but no later than the date that final payment is made, a contractor shall submit the claim to the appropriate procurement officer. On conditions the procurement officer considers satisfactory to the unit, the procurement officer may extend the time in which a contractor, after timely submitting a notice of claim, must submit a contract claim under a procurement contract for construction. An example of when a procurement officer may grant an extension includes situations in which the procurement officer finds that a contemporaneous or timely cost quantification following the filing of the notice of claim is impossible or impractical. The claim shall be in writing and shall contain:</text> <paragraph num="(1)"> <text>An explanation of the claim, including reference to all contract provisions upon which it is based;</text> </paragraph> <paragraph num="(2)"> <text>The amount of the claim;</text> </paragraph> <paragraph num="(3)"> <text>The facts upon which the claim is based;</text> </paragraph> <paragraph num="(4)"> <text>All pertinent data and correspondence that the contractor relies upon to substantiate the claim; and</text> </paragraph> <paragraph num="(5)"> <text>A certification by a senior official, officer, or general partner of the contractor or the subcontractor, as applicable, that, to the best of the person's knowledge and belief, the claim is made in good faith, supporting data are accurate and complete, and the amount requested accurately reflects the contract adjustment for which the person believes the procurement agency is liable.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A notice of claim or a claim that is not filed within the time prescribed in Regulation .02 of this chapter shall be dismissed.</text> </paragraph> <paragraph num="D."> <text>Each procurement contract shall provide notice of the:</text> <paragraph num="(1)"> <text>Time requirements of this regulation; and</text> </paragraph> <paragraph num="(2)"> <text>Acceptable methods of filing a claim, including whether and how claims may be filed by electronic means.</text> </paragraph> </paragraph> <paragraph num="E."> <text>A claim may be filed by electronic means only if expressly permitted and in the manner specified by the contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Review and Investigation of Contractor Claim."> <text>Upon receipt of a contractor's claim, the procurement officer:</text> <paragraph num="A."> <text>Shall investigate and review the facts pertinent to the claim;</text> </paragraph> <paragraph num="B."> <text>May request additional information or substantiation through any appropriate procedure; and</text> </paragraph> <paragraph num="C."> <text>Unless clearly inappropriate, shall seek the advice of the Office of the Attorney General.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Disposition of Contractor Claim."> <paragraph num="A."> <text>The procurement officer may conduct discussions or negotiations regarding the contractor claim and, subject to approval by the reviewing authority and the Office of the Attorney General, and consistent with the budget and applicable law, may settle the claim. The settlement agreement shall be written, shall provide for an appropriate release, and shall be supported by a written determination of the procurement officer that the settlement is in the best interests of the State.</text> </paragraph> <paragraph num="B."> <text>If discussions or negotiations are not conducted or if the contractor claim is not settled, the procurement officer shall prepare a recommended decision on the claim, which normally should contain:</text> <paragraph num="(1)"> <text>A description of the claim;</text> </paragraph> <paragraph num="(2)"> <text>A reference to pertinent contract provisions;</text> </paragraph> <paragraph num="(3)"> <text>A statement of factual areas of agreement or disagreement;</text> </paragraph> <paragraph num="(4)"> <text>A statement of the proposed decision, with supporting rationale; and</text> </paragraph> <paragraph num="(5)"> <text>A paragraph substantially as follows:</text> </paragraph> </paragraph> <paragraph num="C."> <text>The contractor claim and recommended decision of the procurement officer shall be submitted for review to the reviewing authority and the Office of the Attorney General. Unless the reviewing authority remands the proceeding with instructions to the procurement officer, the reviewing authority shall approve, modify, or disapprove the recommended decision within 180 days after receiving the contract claim or a longer period if the parties agree. In disapproving a recommended decision, the reviewing authority may order the procurement officer to effect a resolution of the claim.</text> </paragraph> <paragraph num="D."> <text>Unless the contractor claim is remanded to the procurement officer, the decision of the reviewing authority, including a decision not to pay a contract claim, is the final action by the procurement agency and shall be furnished to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt. Failure to reach a decision within the time required under §C of this regulation may be deemed, at the option of the contractor, to be a decision not to pay the contract claim that may be appealed in accordance with Regulation .09 of this chapter.</text> </paragraph> <paragraph num="E."> <text>Construction Contracts.</text> <paragraph num="(1)"> <text>This section applies only to procurement contracts for construction.</text> </paragraph> <paragraph num="(2)"> <text>The reviewing authority shall mail or deliver written notification of its decision to the contractor within:</text> <paragraph num="(a)"> <text>90 days after the procurement officer receives the claim if the claim is an amount for which the Appeals Board accelerated procedure, set forth in COMAR 21.10.06.12, may be used;</text> </paragraph> <paragraph num="(b)"> <text>180 days after the procurement officer receives the claim for a claim not covered under §E(2)(a) of this regulation; or</text> </paragraph> <paragraph num="(c)"> <text>A longer period that the contractor agrees to in writing.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Failure to reach a decision within the time prescribed in §E(2) of this regulation may be deemed, at the option of the contractor, to be a decision not to pay the contract claim that may be appealed in accordance with Regulation .09 of this chapter.</text> </paragraph> <paragraph num="(4)"> <text>The final decision may award a contract claim only for those expenses incurred not more than 30 days before the notice of claim was initially required to have been submitted under Regulation .02 of this chapter.</text> </paragraph> <paragraph num="(5)"> <text>If the final decision grants the claim in part and denies the claim in part, the procurement agency shall pay the contractor the amount granted. Payment of the partial claim is not an admission of liability by the unit on the claim and does not preclude the unit from recovering the amount paid if a subsequent determination modifies the final decision.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Filing of Claim by Procurement Agency."> <paragraph num="A."> <text>A claim by a procurement agency shall be asserted by written notice to the contractor and the procurement officer explaining:</text> <paragraph num="(1)"> <text>The basis for the claim;</text> </paragraph> <paragraph num="(2)"> <text>To the extent known, the amount of claim or performance or other action required of the contractor; and</text> </paragraph> <paragraph num="(3)"> <text>The time within which the contractor shall provide a written response.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If appropriate, the procurement officer may conduct discussions or negotiations with the contractor.</text> </paragraph> <paragraph num="C."> <text>If the contractor fails to respond, provides an inadequate response, or denies the claim or the relief sought by the procurement agency in whole or in part, the procurement officer shall proceed in accordance with Regulation .08 of this chapter.</text> </paragraph> <paragraph num="D."> <text>The provisions of §§A, B, and C of this regulation do not apply if notice of claim is not required under the terms of the contract or under the circumstances, in which case the procurement officer shall proceed in accordance with Regulation .08 of this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Review and Investigation of Procurement Agency Claim."> <text>Upon receipt of a procurement agency's claim, the procurement officer:</text> <paragraph num="A."> <text>Shall investigate and review the facts pertinent to the claim;</text> </paragraph> <paragraph num="B."> <text>May request additional information or substantiation through any appropriate procedure; and</text> </paragraph> <paragraph num="C."> <text>Unless clearly inappropriate, may seek the advice of the Office of the Attorney General.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Contractor's Response to Procurement Agency Claim."> <paragraph num="A."> <text>The contractor shall submit a written response to the procurement agency claim within 30 days of the receipt of the written notice. This period may be extended at the discretion and with the written consent of the procurement officer.</text> </paragraph> <paragraph num="B."> <text>The written response shall state:</text> <paragraph num="(1)"> <text>Whether the contractor denies the procurement agency claim or the relief sought in whole or in part;</text> </paragraph> <paragraph num="(2)"> <text>The basis of any denial; and</text> </paragraph> <paragraph num="(3)"> <text>The factual areas of agreement or disagreement.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Disposition of Procurement Agency Claim."> <paragraph num="A."> <text>The procurement officer may conduct discussions or negotiations regarding the procurement agency claim and, subject to approval by the reviewing authority and the Office of the Attorney General, and consistent with the applicable law, may settle the claim.</text> </paragraph> <paragraph num="B."> <text>The settlement agreement shall be written and shall be based upon a determination of the procurement officer that the settlement is in the best interests of the State.</text> </paragraph> <paragraph num="C."> <text>If the contractor fails to respond, provides an inadequate response, or denies the procurement agency claim or the relief sought by the procurement agency in whole or in part, and the claim is not otherwise settled, the procurement officer shall prepare a recommended decision on the claim, which shall contain:</text> <paragraph num="(1)"> <text>A description of the claim;</text> </paragraph> <paragraph num="(2)"> <text>A reference to pertinent contract provisions;</text> </paragraph> <paragraph num="(3)"> <text>A statement of factual areas of agreement and disagreement;</text> </paragraph> <paragraph num="(4)"> <text>A statement of the proposed decision, with supporting rationale; and</text> </paragraph> <paragraph num="(5)"> <text>A paragraph that states substantially the following:</text> </paragraph> <aftertext>“This decision is the final action of this agency. This decision may be appealed to the Maryland State Board of Contract Appeals in accordance with COMAR 21.10.04.09. If you decide to take such an appeal, you must mail or otherwise file a written notice of appeal with the Appeals Board within 30 days from the date you receive this decision.”</aftertext> </paragraph> <paragraph num="D."> <text>The procurement agency claim and recommended decision of the procurement officer shall be submitted for review to the reviewing authority and the Office of the Attorney General.</text> </paragraph> <paragraph num="E."> <text>The reviewing authority may approve, modify, or disapprove the recommended decision.</text> </paragraph> <paragraph num="F."> <text>In disapproving a recommended decision, the reviewing authority may order the procurement officer to effect a resolution of the claim.</text> </paragraph> <paragraph num="G."> <text>Unless the procurement agency claim is remanded to the procurement officer, the decision of the reviewing authority:</text> <paragraph num="(1)"> <text>Is the final action by the procurement agency; and</text> </paragraph> <paragraph num="(2)"> <text>Shall be furnished to the contractor by:</text> <paragraph num="(a)"> <text>Certified mail, return receipt requested; or</text> </paragraph> <paragraph num="(b)"> <text>Any other method that provides evidence of receipt.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Time for Filing Appeal."> <paragraph num="A."> <text>An appeal to the Appeals Board shall be mailed or otherwise filed within 30 days of the receipt of notice of the final decision. The notice shall indicate that an appeal is intended, shall reference the decision from which the appeal is being taken, and shall identify the contract involved.</text> </paragraph> <paragraph num="B."> <text>An appeal based upon a failure to reach a decision within the period prescribed in Regulation .04E of this chapter may be filed after the expiration of the prescribed period. If a procurement officer's decision is issued after the expiration of the prescribed period but before a notice of appeal is filed with the Appeals Board, §A of this regulation applies to any subsequent appeal.</text> </paragraph> <paragraph num="C."> <text>A copy of the notice of appeal shall be furnished to the procurement officer.</text> </paragraph> <paragraph num="D."> <text>An appeal received by the Appeals Board after the time prescribed in §A or B of this regulation may not be considered unless it was sent by registered or certified mail not later than the fifth day before the final date for filing an appeal as specified in §A or B of this regulation. A date affixed by postage meter will not be considered as evidence of the actual mailing date. The only acceptable evidence to establish the date of mailing shall be the U.S. Postal Service postmark on the wrapper or on the original receipt from the U.S. Postal Service. If the postmark is illegible, the appeal shall be deemed to have been filed when received by the Appeals Board.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Applicability."> <text>The procedures in this chapter apply to all contract claims filed after October 1, 2004 regardless of whether the contracts from which the claims arise commenced before October 1, 2004.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 15-201—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03 repealed and new Regulations .01—.06 adopted effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective October 18, 1999 (26:21 Md. R. 1631)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective October 6, 1997 (24:20 Md. R. 1405); January 24, 2000 (27:1 Md. R. 78)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02D amended and E adopted effective October 27, 2003 (30:21 Md. R. 1530)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E amended effective October 6, 1997 (24:20 Md. R. 1405)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06D amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective May 9, 2005 (32:9 Md. R. 849)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02E amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C, D amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05C, D amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09B amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="05" heading="Maryland State Board of Contract Appeals — General"> <regulation prefix="Regulation" num=".01" heading="Location of the Appeals Board."> <paragraph num="A."> <text>Mailing Address and Phone Number. The mailing address and the phone number of the Appeals Board are as follows:</text> </paragraph> <paragraph num="B."> <text>Electronic Filing Address. Documents may be filed electronically by sending them via email to efile.msbca@maryland.gov. The filing party is responsible for confirming receipt.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="General Procedures."> <paragraph num="A."> <text>Regulations. Appeals referred to the Appeals Board are handled in accordance with the procedural regulations of the Appeals Board.</text> </paragraph> <paragraph num="B."> <text>Administration and Interpretation of Regulations. The regulations will be administered and interpreted so as to ensure a just and inexpensive determination of appeals without unnecessary delay.</text> </paragraph> <paragraph num="C."> <text>Preliminary Procedures. Preliminary procedures are available to encourage full disclosure of relevant and material facts and to discourage unwarranted surprise. Participants in proceedings before the Appeals Board are encouraged to use these procedures in a voluntary, informal manner.</text> </paragraph> <paragraph num="D."> <text>Ex Parte Communications. A member of the Appeals Board or of the Appeals Board's staff may not entertain, nor may any person directly or indirectly involved in an appeal submit to the Appeals Board or the Appeals Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation among Appeals Board members or to ex parte communications concerning the Appeals Board's administrative functions or procedures.</text> </paragraph> <paragraph num="E."> <text>Representation by Counsel. Whenever reference is made to contractor, protester, appellant, administrator, respondent, interested party, or parties, this shall include respective counsel for the parties, as soon as appropriate notices of appearance have been filed with the Appeals Board.</text> </paragraph> <paragraph num="F."> <text>Pleadings.</text> <paragraph num="(1)"> <text>Caption and Title. Every pleading shall contain a caption setting forth the name of the Appeals Board, the title of the appeal, the number of the State contract or license application involved, and the docket number assigned by the Appeals Board. The caption for an initial pleading shall include the address of appellant. Under the caption shall be placed a statement of the nature of the pleading and the relief, if any, sought. The following illustrates the required format:</text> </paragraph> <paragraph num="(2)"> <text>Paper Size. Pleadings shall be on white standard letter size (8-1/2 x 11 inch) paper, without back or cover.</text> </paragraph> </paragraph> <paragraph num="G."> <text>Subsequent Appeals and Additional Protests or Claims.</text> <paragraph num="(1)"> <text>If a party files multiple appeals based on the same solicitation or contract, the party filing each subsequent appeal shall promptly notify the Clerk in writing that the appeal is based on the same solicitation or contract as the previously filed appeal or appeals.</text> </paragraph> <paragraph num="(2)"> <text>A party filing an appeal shall promptly notify the Clerk in writing of any additional protests or claims relating to the same solicitation or contract that have been filed with a State agency but are not yet ripe for appeal.</text> </paragraph> </paragraph> <paragraph num="H."> <text>Stay. Upon motion or on its own initiative, the Appeals Board may stay any appeal as it deems appropriate.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Representation."> <paragraph num="A."> <text>General. An individual may appear before the Appeals Board in person, or may be represented by an attorney at law licensed in Maryland. Corporations, partnerships, joint ventures, LLCs, or other entities shall be represented by an attorney at law licensed in Maryland. The State shall be represented by an attorney designated by the Office of the Attorney General who shall be licensed in Maryland.</text> </paragraph> <paragraph num="B."> <text>Out-of-State Attorney. An attorney specially admitted may act as co-counsel for a participant in a proceeding who also is represented by an attorney admitted to practice in this State. The specially admitted attorney may, upon motion, be permitted to participate in Appeals Board proceedings without being accompanied by Maryland counsel.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Appearance — General."> <paragraph num="A."> <text>How Made. An appearance may be made as follows:</text> <paragraph num="(1)"> <text>By filing a notice of appeal or any pleading;</text> </paragraph> <paragraph num="(2)"> <text>By filing with the Clerk of the Appeals Board a written notice of appearance;</text> </paragraph> <paragraph num="(3)"> <text>Orally, in any proceeding before the Appeals Board.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Appearance of Out-of-State Attorney. An out-of-State attorney may enter the out-of-State attorney’s appearance and participate in an action only after having been admitted in accordance with Md. Rule 19-217 (Special Admission of Out-of-State Attorneys Pro Hoc Vice). Once so admitted, the attorney’s appearance is limited by the restriction of that Rule and Regulation .03 of this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Subpoenas."> <paragraph num="A."> <text>General.</text> <paragraph num="(1)"> <text>Upon written request of a participant in a proceeding before the Appeals Board, the Appeals Board shall issue a subpoena requiring:</text> <paragraph num="(a)"> <text>Testimony at a deposition;</text> </paragraph> <paragraph num="(b)"> <text>Testimony at a hearing;</text> </paragraph> <paragraph num="(c)"> <text>Production of books, papers, documents, or tangible things designated in the subpoena.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>In filing a written request for subpoena, a participant in a proceeding shall certify that an effort has been made to comply with §B of this regulation.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Voluntary Cooperation. Each participant is expected to:</text> <paragraph num="(1)"> <text>Cooperate and make available witnesses and books, papers, documents, or tangible things under its control as requested by another participant without issuance of a subpoena;</text> </paragraph> <paragraph num="(2)"> <text>Secure voluntary attendance of desired third-party witnesses and production of desired third-party books, papers, documents, or tangible things.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Requests for Subpoenas.</text> <paragraph num="(1)"> <text>A request for a subpoena shall normally be filed at least:</text> <paragraph num="(a)"> <text>15 days before a scheduled deposition when the attendance of a witness at a deposition is sought;</text> </paragraph> <paragraph num="(b)"> <text>30 days before a scheduled hearing when the attendance of a witness at the hearing is sought.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>In its discretion, the Appeals Board may honor requests for subpoenas not made within the time limitations in §C(1)(a) and (b), above.</text> </paragraph> <paragraph num="(3)"> <text>A request for a subpoena shall state the reasonable scope and general relevance of the testimony, and of any books, papers, documents, or tangible things sought to the appeal.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Request To Quash or Modify.</text> <paragraph num="(1)"> <text>Upon written request by the person subpoenaed or by a participant in the proceeding, made within 10 days after service, the Appeals Board may:</text> <paragraph num="(a)"> <text>Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or</text> </paragraph> <paragraph num="(b)"> <text>Require the person in whose behalf the subpoena was issued to advance reasonable itinerant costs and/or reasonable cost of producing subpoenaed books, papers, documents, or tangible things.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>When circumstances require, however, the Appeals Board may act upon a request at any time after a copy of the subpoena has been served upon the other participants in the proceeding.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Form; Issuance. Each subpoena shall state the name of the Appeals Board and the title of the appeal, and shall command each person to whom it is directed to attend and give testimony, and if appropriate, to produce specified books, papers, documents, or tangible things, at a time and place therein specified. In issuing a subpoena to a requesting participant, the Appeals Board member assigned to the appeal involved, or another Appeals Board member as assigned by the Chairman, shall sign the subpoena. Blank subpoena forms may not be signed by an Appeals Board member.</text> </paragraph> <paragraph num="F."> <text>Service.</text> <paragraph num="(1)"> <text>The Appeals Board will release subpoenas to the requesting participant for service.</text> </paragraph> <paragraph num="(2)"> <text>A subpoena may be served as follows:</text> <paragraph num="(a)"> <text>Personal Delivery. A subpoena may be served at any place by any person who is not a participant in the proceeding and is not younger than 18 years old. A subpoena shall be served by personally delivering a copy to the person named in it. Service of a subpoena upon a party represented by an attorney may be made by sending the subpoena to the attorney.</text> </paragraph> <paragraph num="(b)"> <text>Certified Mail. A subpoena may be served by certified mail, endorsed “Restricted Delivery — Return Receipt Requested”.</text> </paragraph> </paragraph> </paragraph> <paragraph num="G."> <text>Return on Service.</text> <paragraph num="(1)"> <text>Personal Service. The person serving the subpoena shall file proof of service by affidavit, and the affidavit shall be filed promptly with the Appeals Board and before the time designated for compliance with the subpoena. The affidavit shall set out the name of the person served, the date, and the particular place and manner of service, and shall state whether the person making service is 18 years old or older. Proof of service also may be made by completing and executing the applicable “Return on Service” portion of a duplicate copy of the subpoena.</text> </paragraph> <paragraph num="(2)"> <text>Certified Mail. Upon return through the post office of the return receipt, an affidavit shall be filed with the Appeals Board showing that the subpoena was:</text> <paragraph num="(a)"> <text>Mailed to the person named; and</text> </paragraph> <paragraph num="(b)"> <text>In fact received by the person as evidenced by the person’s signature on the original return receipt, which shall be attached to the affidavit. The affidavit shall be prima facie evidence of service.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Proof of service also may be made by completing and executing the applicable “Return on Service” portion of a duplicate copy of the subpoena.</text> </paragraph> </paragraph> <paragraph num="H."> <text>Refusal to Obey a Subpoena. In the case of a refusal to obey a subpoena, the Appeals Board may invoke the aid of a court of competent jurisdiction, and the court may order that person to obey the subpoena or order. The party seeking enforcement shall prepare and submit to the Appeals Board a proposed petition for consideration. The party seeking enforcement shall be responsible for filing the Petition with the court once it has been approved and signed by the Appeals Board and shall pay any applicable court costs.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Motions."> <paragraph num="A."> <text>Scope. Unless otherwise provided by this subtitle, this regulation applies to all motions filed with the Appeals Board.</text> </paragraph> <paragraph num="B."> <text>Unless otherwise provided by this subtitle:</text> <paragraph num="(1)"> <text>A party may move for appropriate relief before or during a hearing.</text> </paragraph> <paragraph num="(2)"> <text>A party shall submit all motions in writing in accordance with §B(3) of this regulation or orally at a hearing.</text> </paragraph> <paragraph num="(3)"> <text>Written motions shall:</text> <paragraph num="(a)"> <text>Be filed as far in advance of the hearing as is practicable or in accordance with the Appeals Board’s Scheduling Order;</text> </paragraph> <paragraph num="(b)"> <text>State concisely the question to be determined;</text> </paragraph> <paragraph num="(c)"> <text>Be accompanied by any necessary supporting documentation and shall not exceed (motions and responses thereto) 25 8.5 x 11 inch pages, typewritten double-spaced, excluding exhibits thereto; and</text> </paragraph> <paragraph num="(d)"> <text>A motion and response thereto shall be filed with a Proposed Order that specifies the relief requested.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>A response to a written motion shall be filed within 15 working days of the State government after the date the motion was filed, or the day before the date of the hearing, whichever is earlier. The moving party may file a reply to the response to the motion. No further responses will be accepted. The reply shall be filed within 5 working days of the State government after the date the response was filed, or the day before the date of the hearing, whichever is earlier, and shall not exceed ten 8.5 x 11 inch pages, typewritten and double-spaced, excluding exhibits thereto. Any party that desires to supplement its motion or response thereto must seek leave of the Appeals Board.</text> </paragraph> <paragraph num="(5)"> <text>Upon notice to all parties, the Appeals Board may schedule a hearing to consider a written motion.</text> </paragraph> <paragraph num="(6)"> <text>For a written or oral motion, the Appeals Board may:</text> <paragraph num="(a)"> <text>Issue a written decision;</text> </paragraph> <paragraph num="(b)"> <text>State the decision on the record; or</text> </paragraph> <paragraph num="(c)"> <text>State the decision on the record and issue a written opinion providing the basis for its decision at a later date.</text> </paragraph> </paragraph> <paragraph num="(7)"> <text>If a ruling on a motion is not stated on the record or the subject of a written decision, the ruling shall be included in the Appeals Board's proposed or final decision.</text> </paragraph> <paragraph num="(8)"> <text>The filing or pendency of a motion does not alter or extend any time limit.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Motion to Dismiss.</text> <paragraph num="(1)"> <text>Upon motion, the Appeals Board may issue an Order dismissing an initial pleading for failure to state a claim upon which relief can be granted. A motion regarding the jurisdiction of the Appeals Board shall be filed promptly. A hearing on the motion shall be conducted at the request of either party, unless the Appeals Board determines that its decision on the motion will be deferred pending a hearing on both the merits of the appeal and the motion. The Appeals Board shall have the right at any time to raise the issue of its jurisdiction to proceed with a particular appeal and shall issue an appropriate order affording the parties an opportunity to be heard on the issue of the Appeals Board’s jurisdiction.</text> </paragraph> <paragraph num="(2)"> <text>If, on a motion to dismiss for failure of the initial pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Appeals Board, the motion shall be treated as one for summary decision and disposed of as provided in §D of this regulation, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by §D of this regulation.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Motion for Summary Decision.</text> <paragraph num="(1)"> <text>A party may move for summary decision at any time on any appropriate issue in the appeal, as follows:</text> <paragraph num="(a)"> <text>A motion for summary decision, or any opposition thereto, shall be supported by affidavit.</text> </paragraph> <paragraph num="(b)"> <text>An affidavit supporting or opposing a motion for summary decision shall be made under penalties of perjury and upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The Appeals Board may grant a motion for summary decision if the Appeals Board finds that:</text> <paragraph num="(a)"> <text>After resolving all inferences in favor of the party against whom the motion is asserted, there is no genuine issue of material fact; and</text> </paragraph> <paragraph num="(b)"> <text>A party is entitled to prevail as a matter of law.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Motion for Judgment.</text> <paragraph num="(1)"> <text>A party may move for judgment on any of the issues in an action at the close of the evidence offered by an opposing party. The moving party shall state with particularity all reasons that the motion should be granted. Objection to the motion for judgment is not necessary. A party does not waive the right to make the motion for judgment by introducing evidence during the presentation of an opposing party's case.</text> </paragraph> <paragraph num="(2)"> <text>If a party moves for judgment at the close of the evidence offered by an opposing party, the Appeals Board may:</text> <paragraph num="(a)"> <text>Proceed to determine the facts and to render judgment against an opposing party; or</text> </paragraph> <paragraph num="(b)"> <text>Decline to render judgment until the close of all evidence.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>A party who moves for judgment at the close of the evidence offered by an opposing party may offer evidence if the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the party withdraws the motion.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Motion for Reconsideration. A motion for reconsideration may only be filed on the grounds that the decision of the Appeals Board was in error as a result of fraud, surprise, mistake, or inadvertence and shall be filed within 15 days for appeals of protests and within 30 days for appeals of contract claims from the date the party filing the motion received a copy of the decision of the Appeals Board. A response to a motion for reconsideration shall be filed within 7 working days of the State government after the date the motion was filed. The moving party may not file a reply to a response to a motion for reconsideration. The Appeals Board may also, at its own discretion, alter or amend its decision or order if it determines that an error has occurred. For purposes of judicial review as provided for under State Finance and Procurement Article, §15-223, and State Government Article, §10-222, Annotated Code of Maryland, and Title 7, Chapter 200 of the Md. Rules, an action of the Appeals Board shall be deemed final 30 days from the date of receipt by the parties of the Appeals Board’s decision under this regulation or, in the event of a motion for reconsideration, from the date of receipt by the parties of the Appeals Board's ruling thereon.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Hearings — Where and When Held."> <text>Hearings ordinarily will be held in the Baltimore, Maryland, metropolitan area, except that, upon request reasonably made and upon good cause shown, the Appeals Board may set the hearing at another location. Hearings will be scheduled, and may be rescheduled, at the discretion of the Appeals Board with due consideration to the regular order of appeals, the requirements of COMAR 21.10.06.12 and COMAR 21.10.07.06, and other pertinent factors. On request or motion by either party and upon good cause shown, the Appeals Board may reschedule the date of a hearing.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Notice of Hearings."> <text>The parties shall be given at least 15 days notice of the time and place set for hearings. In scheduling hearings, the Appeals Board will give due regard to the desires of the parties and to the requirement for the just and inexpensive determination of appeals without unnecessary delay. Notices of hearings shall be promptly acknowledged by the parties.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Unexcused Absence of a Party."> <text>The unexcused absence of a party at the time and place set for a hearing shall not be occasion for delay. In the event of an unexcused absence, the hearing shall proceed, and the appeal will be regarded as submitted by the absent party pursuant to COMAR 21.10.06.11 in appeals concerning contract disputes or pursuant to COMAR 21.10.07.03 in appeals concerning protests.</text> </regulation> <regulation prefix="Regulation" num=".10" heading="Hearings: Nature, Examination of Witnesses."> <paragraph num="A."> <text>Nature of Hearings. Hearings shall be as informal as may be reasonable and appropriate under the circumstances. Appellant and respondent may offer at a hearing on the merits such relevant evidence as they deem appropriate, subject, however, to the sound discretion of the presiding member in supervising the extent and manner of presentation of this evidence, the guidelines set forth in State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and applicable case law. In general, admissibility will hinge on relevancy and materiality. Letters or their copies, affidavits, or other evidence that may not be admissible under the Maryland Rules of Evidence may be admitted in the discretion of the presiding member. The weight to be attached to evidence presented in any particular form will be within the discretion of the Appeals Board, taking into consideration all the circumstances of the particular appeal. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Appeals Board may in any appeal require evidence in addition to that offered by the parties.</text> </paragraph> <paragraph num="B."> <text>Examination of Witnesses. Witnesses before the Appeals Board shall be examined orally under oath or affirmation, unless the facts are stipulated or the presiding member shall otherwise order.</text> </paragraph> <paragraph num="C."> <text>Exchange of Exhibits. The parties are required, whenever possible, to exchange exhibits in advance of the hearing. When this is not possible, exhibits shall be exchanged so as to avoid both delay to the hearing and unwarranted surprise.</text> </paragraph> <paragraph num="D."> <text>Voluntary Cooperation. Each party is expected to cooperate and make available witnesses and books, papers, documents, or tangible things under its control as needed for its own appeal or as requested by the other party, without issuance of an order, and to secure voluntary attendance of desired third-party books, papers, documents, or tangible things, whenever possible.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Copies of Papers."> <text>When books, records, papers, or documents have been received in evidence, a true copy of them, or of any part that may be material or relevant, may be substituted during the hearing or at its conclusion.</text> </regulation> <regulation prefix="Regulation" num=".12" heading="Post Hearing Briefs."> <paragraph num="A."> <text>General. Briefs shall be compact, concise, logically arranged, and free from burdensome, irrelevant, immaterial, and scandalous matter. Briefs are required to contain a table of contents and tables of statutes, regulations, and cases cited.</text> </paragraph> <paragraph num="B."> <text>Time of Submittal. Briefs shall be submitted at times and upon terms agreed upon by the parties and the presiding member, or as otherwise determined by the presiding member at the conclusion of the hearing.</text> </paragraph> <paragraph num="C."> <text>Length of Briefs. Except by permission of the Appeals Board on motion, principal briefs shall not exceed 25 8.5" x 11" inch pages, typewritten double-spaced, exclusive of any table of contents and tables of statutes, regulations, and cases cited.</text> </paragraph> <paragraph num="D."> <text>Number of Copies Required for Submittal. For each brief, one original plus three copies and one electronic copy in a format specified by the Clerk shall be submitted to the Appeals Board.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".13" heading="Transcript of Proceedings."> <text>Testimony and argument at hearings shall be reported verbatim, unless the Appeals Board otherwise orders. Each party shall be responsible both for arranging with the reporter to obtain a copy of the transcript and for the cost thereof.</text> </regulation> <regulation prefix="Regulation" num=".14" heading="Withdrawal of Exhibits."> <text>After a decision has become final, the Appeals Board may, upon request and after notice to the other party, permit withdrawal of original exhibits, or any part of them, by the entitled party. The substitution of true copies of exhibits, or any part of them, may be required by the Appeals Board as a condition of granting permission for withdrawal.</text> </regulation> <regulation prefix="Regulation" num=".15" heading="Sanctions."> <text>If a party fails or refuses to obey an order issued by the Appeals Board, the Appeals Board may issue whatever order in regard to the failure as it considers necessary to the just and expeditious conduct of the appeal.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 15-210—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 repealed and new Regulations .03, .04, and .05 adopted effective October 10, 1983 (10:20 Md. R. 1790)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective March 13, 1995 (22:5 Md. R. 368)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. RR. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02H adopted effective December 12, 2024 (51:24 Md. R. 1082)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended effective April 18, 2022 (49:8 Md. R. 500)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective August 24, 2020 (47:17 Md. R. 797)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. RR. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05G amended effective April 18, 2022 (49:8 Md. R. 500)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 adopted effective August 30, 2004 (31:17 Md. R. 1313)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective August 24, 2020 (47:17 Md. R. 797)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06C, D amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 C, D amended effective December 12, 2024 (51:24 Md. R 1082)</annotation> <annotation type="History" subtype="Administrative History">Regulations .07—.15 adopted as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); adopted permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> </annotations> </chapter> <chapter num="06" heading="Maryland State Board of Contract Appeals — Procedures for Appealing Contract Disputes"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Appellant” means the contractor appealing a final action of an agency.</text> </paragraph> <paragraph num="(2)"> <text>“File” means receipt in the offices of the Appeals Board.</text> </paragraph> <paragraph num="(3)"> <text>“Party” means either the appellant or respondent.</text> </paragraph> <paragraph num="(4)"> <text>“Pleading” means the complaint, answer, all amendments and supplements thereto, and motions.</text> </paragraph> <paragraph num="(5)"> <text>“Respondent” means the State agency which issued the contract in dispute.</text> </paragraph> <paragraph num="(6)"> <text>“Submit” means receipt in the offices of the Appeals Board.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Appeals."> <paragraph num="A."> <text>How Taken. Notice of an appeal shall be in writing, and the original, together with two copies, shall be mailed to or filed with the Appeals Board within the time specified in the contract or otherwise allowed by law or regulation. A copy shall be furnished to the procurement officer from whose decision the appeal is taken.</text> </paragraph> <paragraph num="B."> <text>Notice of Appeal. A notice of appeal shall indicate that an appeal is intended, the amount in dispute, if known, and shall identify the contract (by number), the State agency whose contract is the subject of the dispute, and the procurement officer’s decision from which the appeal is taken. The notice of appeal shall be signed personally by the appellant (the contractor making the appeal), or by an officer of the appellant corporation or member of the appellant firm, or by the appellant’s duly authorized representative or attorney. The complaint referred to in Regulation .06 may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Docketing of Appeals."> <paragraph num="A."> <text>When a notice of appeal in any form has been received by the Appeals Board, it shall be docketed promptly. A notice of docketing shall be forwarded to both parties and a copy of these regulations will be furnished to the appellant upon request.</text> </paragraph> <paragraph num="B."> <text>The Board may consolidate appeals when the parties agree via joint motion or at its own discretion.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Preparation, Contents, Organization, Forwarding, and Status of Appeal File."> <paragraph num="A."> <text>Duties of Procurement Officer. Within 30 days of notice from the Appeals Board that an appeal has been docketed, the procurement officer shall assemble and transmit to the Appeals Board, through the Office of the Attorney General, documents relevant to the appeal including:</text> <paragraph num="(1)"> <text>The decision from which the appeal is taken;</text> </paragraph> <paragraph num="(2)"> <text>The contract including specifications and relevant amendments, plans, and drawings;</text> </paragraph> <paragraph num="(3)"> <text>All correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;</text> </paragraph> <paragraph num="(4)"> <text>Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made before the filing of the notice of appeal with the Appeals Board; and</text> </paragraph> <paragraph num="(5)"> <text>Any Additional Information Considered Relevant. Within the same time specified above, the procurement officer shall furnish to the appellant a copy of each document it transmits to the Appeals Board, except those stated in §A(2) of this regulation, as to which a list furnished to the appellant indicating specific contractual documents transmitted will suffice, and those stated in §D of this regulation.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Duties of the Appellant. Within 30 days after receipt of a copy of the appeal file assembled by the procurement officer, the appellant may supplement the file by transmitting to the Appeals Board any documents not contained in the file that it considers relevant to the appeal, and furnishing two copies of these documents to the trial attorney designated by the Office of the Attorney General.</text> </paragraph> <paragraph num="C."> <text>Organization of Appeal File. Documents in the appeal file may be originals or legible facsimile or authenticated copies, and shall be arranged in chronological order when practicable, numbered sequentially, tabbed and indexed to identify the contents of the file.</text> </paragraph> <paragraph num="D."> <text>Lengthy Documents. The Appeals Board may waive the requirement of furnishing to the other party copies of bulky, lengthy, or out-of-size documents when a party has shown that doing so would impose an undue burden. At the time a party files with the Appeals Board a document for which a waiver has been granted, the filing party shall provide an electronic copy of the document in a format specified by the Clerk of the Appeal Board and shall notify the other party that this document or a copy is available for inspection at the offices of the Appeals Board or of the filing party.</text> </paragraph> <paragraph num="E."> <text>Status of Documents in Appeal File. Documents contained in the appeal file are considered, without further action by the parties, as part of the record upon which the Appeals Board shall render its decision, unless a party objects to the consideration of a particular document before the hearing, or before settling the record if there is no hearing on the appeal. If objection to a document is made, the Appeals Board will rule upon its admissibility into the record as evidence in accordance with Regulation .13 of this chapter and COMAR 21.10.05.10.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Dismissal For Lack of Jurisdiction — Repealed" /> <regulation prefix="Regulation" num=".06" heading="Pleadings."> <paragraph num="A."> <text>Complaint. Within 30 days after receipt of notice of the docketing of the appeal, the appellant shall file with the Appeals Board an original and three copies of a complaint setting forth simple, concise, and direct statements of each of its claims alleging the basis, with appropriate reference to contract provisions, for each claim and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint.</text> </paragraph> <paragraph num="B."> <text>Answer. Within 30 days from receipt of the complaint, the respondent shall prepare and file with the Appeals Board an original and three copies of an answer, setting forth simple, concise, and direct statements of the respondent's defenses to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses available.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Amendment of Pleadings or Record."> <text>The Appeals Board, upon its own initiative or upon application by a party, may order a party to make a more definite statement of the complaint or answer, or reply to an answer. Within the proper scope of the appeal, the Appeals Board may permit either party to amend its pleading upon conditions just to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings or the documentation described in Regulation .04 are tried by express or implied consent of the parties, or by permission of the Appeals Board, they shall be treated in all respects as if they had been raised. In these instances, motions to amend the pleadings to conform to the proof may be entered, but are not required. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings or the appeal file documentation (which shall be deemed part of the pleadings for this purpose), it may be admitted within the proper scope of the appeal, except that the objecting party may be granted a continuance if necessary to enable him to meet the evidence.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Hearing — Election."> <text>Within 5 working days of State government after the filing of the respondent’s answer or the notice referred to in the last sentence of Regulation .06B of this chapter, each party shall advise the Appeals Board in writing whether it desires a hearing, or whether, in the alternative, it elects to submit its appeal on the record without a hearing as prescribed in Regulation .11 of this chapter. Failure to request a hearing shall be deemed a waiver, and the appeal shall be decided on the record. The Board may, at its own discretion, hold a hearing on any issue in dispute.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Prehearing Briefs."> <text>The Appeals Board may require the parties to submit prehearing briefs in any appeal in which a hearing has been elected pursuant to Regulation .08 of this chapter. In the absence of an Appeals Board requirement for this, either party may furnish a prehearing brief to the Appeals Board, upon appropriate and sufficient notice to the other party, at least 30 days before the date set for the hearing. When a prehearing brief is submitted, it shall be furnished so as to be received by the Appeals Board at least 15 days before the date set for the hearing, and a copy simultaneously shall be furnished to the other party. Prehearing briefs shall not exceed 15 8.5 x 11 inch typewritten double-spaced pages, excluding exhibits thereto.</text> </regulation> <regulation prefix="Regulation" num=".10" heading="Prehearing or Presubmission Conference."> <paragraph num="A."> <text>Whether the appeal is to be submitted pursuant to Regulation .11 of this chapter or heard pursuant to Regulation .08 of this chapter, the Appeals Board may, upon its own initiative or upon the request of either party, arrange a telephone conference or call upon the parties to appear before a member of the Appeals Board for a conference to consider:</text> <paragraph num="(1)"> <text>The simplification or clarification of the issues;</text> </paragraph> <paragraph num="(2)"> <text>The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;</text> </paragraph> <paragraph num="(3)"> <text>The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the appeal is to be heard;</text> </paragraph> <paragraph num="(4)"> <text>The possibility of agreement disposing of all or any of the issues in dispute; and</text> </paragraph> <paragraph num="(5)"> <text>Other matters that may aid in the disposition of the appeal.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If a Prehearing Conference is scheduled, the parties shall submit a Prehearing Conference Report not less than 7 days prior to the Prehearing Conference, and a copy shall be provided to the opposing party or parties. The Prehearing Conference Report shall follow the form and include the information set forth in MD Rule 2-504.2.</text> </paragraph> <paragraph num="C."> <text>The results of the conference shall be reduced to writing by the Appeals Board member, and this writing shall constitute part of the record.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Submission Without a Hearing."> <text>Either party may elect to waive a hearing and to submit its appeal upon the record before the Appeals Board, as settled pursuant to Regulation .13 of this chapter. As agreed to by the parties, affidavits, depositions, and answers to interrogatories may be employed to supplement other documentary evidence in the Appeals Board record. The Appeals Board may permit the submission to be further supplemented by oral argument (transcribed if requested), and by briefs arranged in accordance with COMAR 21.10.05.12. Submission of an appeal without hearing does not relieve the parties from the necessity of proving the facts supporting their claims or defenses.</text> </regulation> <regulation prefix="Regulation" num=".12" heading="Optional “Small Claims” Procedures."> <paragraph num="A."> <text>These procedures are available solely at the election of the appellant.</text> </paragraph> <paragraph num="B."> <text>Election to Use “Small Claims” Procedures.</text> <paragraph num="(1)"> <text>In an appeal where the amount in dispute is $100,000 or less, the appellant may elect to have the appeal processed under a “Small Claims” procedure requiring decision of the appeal, when possible, within 150 days after the Appeals Board receives written notice of the appellant’s election to use this procedure. The details of this procedure appear in §C of this regulation.</text> </paragraph> <paragraph num="(2)"> <text>The appellant's election of the “Small Claims” procedure must be made by written notice within 10 days after receipt of the notice of docketing unless this period is extended by the Appeals Board for good cause. The election may not be withdrawn except with permission of the Appeals Board and for good cause.</text> </paragraph> <paragraph num="(3)"> <text>In deciding whether the “Small Claims” procedure is applicable to a given appeal, the Appeals Board shall determine the amount in dispute.</text> </paragraph> </paragraph> <paragraph num="C."> <text>“Small Claims” Procedure.</text> <paragraph num="(1)"> <text>Promptly upon receipt of an appellant's election of the “Small Claims” procedure, the assigned Appeals Board member shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties:</text> <paragraph num="(a)"> <text>Identify and simplify the issues;</text> </paragraph> <paragraph num="(b)"> <text>Establish a simplified procedure appropriate to the particular appeal involved;</text> </paragraph> <paragraph num="(c)"> <text>Determine whether either party wants a hearing and, if so, fix a time and place for a hearing;</text> </paragraph> <paragraph num="(d)"> <text>Require the procurement officer, through the Office of the Attorney General, to furnish all correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the agency final action was issued; and</text> </paragraph> <paragraph num="(e)"> <text>Establish an expedited schedule for resolution of the appeal.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Pleadings, discovery, and other prehearing activity will be allowed only as consistent with the requirement to conduct the hearing on the date scheduled or, if no hearing is scheduled, to close the record on a date that will allow a decision within the 150-day limit. The Appeals Board may impose shortened time periods for actions prescribed or allowed under these regulations as necessary to enable the Appeals Board to decide the appeal within the 150-day limit, and may reserve 30 days for the preparation of the decision.</text> </paragraph> <paragraph num="(3)"> <text>Written decisions by the Appeals Board in appeals processed under the “Small Claims” procedure will be short and contain only summary findings of fact and conclusions. Decisions will be rendered for the Appeals Board by a single member. If there has been a hearing, the Appeals Board member presiding at the hearing may, at the conclusion of the hearing and after hearing such oral arguments as deemed appropriate, render on the record oral summary findings of fact, conclusions, and a decision of the appeal. If an oral decision is rendered, the Appeals Board shall subsequently furnish to the parties a typed copy of the oral decision for the record and to establish the starting date for the period for filing a motion for reconsideration.</text> </paragraph> <paragraph num="(4)"> <text>A decision issued under this regulation shall have no value as precedent.</text> </paragraph> <paragraph num="(5)"> <text>Proposed decisions as provided for under Regulation .26 of this chapter, may not be issued for appeals decided under the “Small Claims” procedure.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".13" heading="Settling the Record."> <paragraph num="A."> <text>The record upon which the Appeals Board's decision is rendered consists of the documents considered under Regulations .04 and .12 of this chapter and, to the extent the following items have been filed, pleadings, prehearing and conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, post hearing briefs, exceptions taken and arguments made pursuant to any proposed decision, and documents that the Appeals Board has specifically designated be made a part of the record. The record will be available at all reasonable times for inspection by the parties at the office of the Appeals Board.</text> </paragraph> <paragraph num="B."> <text>Except as the Appeals Board may otherwise order, no proof may be received in evidence after completion of an oral hearing, or, in appeals submitted on the record, after notification by the Appeals Board that the appeal is ready for decision.</text> </paragraph> <paragraph num="C."> <text>The weight to be attached to any evidence of record rests within the sound discretion of the Appeals Board. The Appeals Board may require either party, with appropriate notice to the other party, to submit additional evidence on a matter relevant to the appeal.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".14" heading="Depositions and Discovery."> <paragraph num="A."> <text>Scope of Discovery. In general, unless otherwise ordered by the Appeals Board, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the appeal:</text> <paragraph num="(1)"> <text>Whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of the other party;</text> </paragraph> <paragraph num="(2)"> <text>Including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things;</text> </paragraph> <paragraph num="(3)"> <text>Including any information of the witness or party, however obtained, as to the identity and location of persons having knowledge of any discoverable matter;</text> </paragraph> <paragraph num="(4)"> <text>Whether or not any of these matters is already known to or otherwise obtainable by the party seeking discovery; and</text> </paragraph> <paragraph num="(5)"> <text>Whether or not the information will be inadmissible at the hearing, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Hearing Preparation — Materials.</text> <paragraph num="(1)"> <text>Subject to the provisions of §C of this regulation, a party may not obtain discovery of documents and tangible things prepared in anticipation of litigation or for hearing by or for another party or by or for that other party's representative (including the party’s attorney, consultant, or surety) except upon a showing that:</text> <paragraph num="(a)"> <text>The materials are otherwise discoverable under §A of this regulation;</text> </paragraph> <paragraph num="(b)"> <text>The party seeking discovery has substantial need of the materials in the preparation of its appeal; and</text> </paragraph> <paragraph num="(c)"> <text>The party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>In ordering discovery of the materials when the required showing has been made, the Appeals Board shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Hearing Preparation — Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provision of §A of this regulation and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:</text> <paragraph num="(1)"> <text>Through interrogatories, a party may require the other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Upon motion, the Appeals Board may order further discovery by other means, subject to restrictions as to scope and, pursuant to §C(3) of this regulation, provisions concerning fees and expenses, that the Board deems appropriate.</text> </paragraph> <paragraph num="(2)"> <text>A party may not discover facts known or opinions held by an expert who has been retained or specially employed by the other party in anticipation of litigation or preparation for hearing and who is not expected to be called as a witness at the hearing, except upon a showing of circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.</text> </paragraph> <paragraph num="(3)"> <text>Unless manifest injustice would result, the Appeals Board shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under §C(1) and (2) of this regulation. With respect to discovery obtained under §C(1), the Appeals Board may require, and with respect to discovery obtained under §C(2), the Appeals Board shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.</text> </paragraph> </paragraph> <paragraph num="D."> <text>When Depositions Permitted. After an appeal has been docketed and a complaint filed, the parties may mutually agree to, or the Appeals Board may, in response to a motion to compel, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before an officer authorized to administer oaths at the place of examination, for the purpose of discovery, or for use as evidence in the appeal, or for both purposes.</text> </paragraph> <paragraph num="E."> <text>Designation of Person to Testify. A party, by written notice to opposing counsel, may name as the deponent a public or private corporation, a partnership, an association, an LLC, or other entity or government agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.</text> </paragraph> <paragraph num="F."> <text>Orders on Depositions. The time, place, and manner of taking depositions shall be as mutually agreed by the parties, or failing agreement, governed by order of the Appeals Board.</text> </paragraph> <paragraph num="G."> <text>Expenses. Except as provided for in §C(3) of this regulation, each party shall bear its own expenses associated with the taking of any deposition.</text> </paragraph> <paragraph num="H."> <text>Protective Orders. The Appeals Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Those orders may include limitations on the scope, method, time, and place for discovery, and provisions for protecting the secrecy of confidential information or documents.</text> </paragraph> <paragraph num="I."> <text>Deposition — Use; General.</text> <paragraph num="(1)"> <text>When May be Used. At the evidentiary hearing or in support of a motion, any part or all of a deposition, so far as admissible under the rules of evidence, applied as though the witness was present and testifying may be used in accordance with any one of the following provisions:</text> <paragraph num="(a)"> <text>Contradiction and Impeachment. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.</text> </paragraph> <paragraph num="(b)"> <text>By Adverse Party. The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under §E of this chapter, to testify on behalf of a public or private corporation, partnership, association, LLC, or other entity or government agency which is a party may be used by an adverse party for any purpose.</text> </paragraph> <paragraph num="(c)"> <text>Witness Not Available — Exceptional Circumstances. The deposition of a witness, whether or not a party, may be used by any party for any purpose against the other party provided the latter party was present or represented at the taking of the deposition or had due notice thereof, if the Appeals Board finds:</text> <paragraph num="(i)"> <text>That the witness is dead;</text> </paragraph> <paragraph num="(ii)"> <text>That the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition;</text> </paragraph> <paragraph num="(iii)"> <text>That the witness is unable to testify because of age, mental incapacity, sickness, infirmity, or imprisonment; or</text> </paragraph> <paragraph num="(iv)"> <text>Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.</text> </paragraph> </paragraph> <paragraph num="(d)"> <text>Use of Part of Deposition. If only part of a deposition is offered in evidence by a party, the other party may require him to introduce any other part which ought in fairness to be considered with the part introduced.</text> </paragraph> <paragraph num="(e)"> <text>Deposition Taken in Previous Action — Substitution of Party. Substitution of a party does not affect the right to use depositions previously taken. When an action in any court of this State has been dismissed and another action involving the same subject matter is afterward brought to the Appeals Board by the same parties, or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Effect of Deposition. A party is not deemed to make a person the party’s own witness for any purpose by taking the person’s deposition. The introduction in evidence of the deposition or any part of it for any purpose other than as permitted in §I(1)(a) and (b) of this regulation makes the deponent the witness of the party introducing the deposition. At the hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by that party or the other party.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".15" heading="Interrogatories to Parties, Admission of Facts, and Production and Inspection of Documents."> <paragraph num="A."> <text>Interrogatories to Parties.</text> <paragraph num="(1)"> <text>After an appeal has been filed with the Appeals Board, a party may serve on the other party written interrogatories to be answered separately in writing, signed under oath by the person making the answer, and returned within 30 days, or another time period that is agreed to by the parties. All answers to interrogatories shall be prepared in the following form:</text> <paragraph num="(a)"> <text>The interrogatory in full;</text> </paragraph> <paragraph num="(b)"> <text>The answer in full, if any, filed to it; and</text> </paragraph> <paragraph num="(c)"> <text>The basis for any exception taken.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A party may not, without leave of the Appeals Board, serve more than two sets of interrogatories or more than 30 interrogatories (including interrogatories subsidiary or incidental to, or dependent upon other interrogatories, however grouped, combined or arranged) except as provided in §A(3) of this regulation.</text> </paragraph> <paragraph num="(3)"> <text>Supplementation of Responses. Except in the case of a deposition, a party who has responded to a request or order for discovery and who obtains further material information before hearing shall supplement the response promptly.</text> </paragraph> <paragraph num="(4)"> <text>At the hearing, the answers may be used to the extent permitted by the Maryland Rules of Evidence.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Admission of Facts. After an appeal has been filed with the Appeals Board, a party may serve upon the other party a request for the admission of specified facts. Within 30 days after service, or such other time period as agreed by the parties, the party served shall answer each requested fact or file objections. The factual propositions set out in the request shall be deemed admitted upon the failure of a party to respond to the request for admission.</text> </paragraph> <paragraph num="C."> <text>Production and Inspection of Documents. After an appeal has been filed with the Appeals Board, a party may serve upon the other party a request for production, inspection, and copying of any documents or objects not privileged, which reasonably may lead to the discovery of admissible evidence. Within 30 days after service, or such other time period as agreed by the parties, the party served shall produce for inspection and copying the documents requested or set forth appropriate grounds for objection.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".16" heading="Service of Papers."> <text>All copies of complaints, answers, and briefs shall be filed directly with the Appeals Board. A party filing any other paper with the Appeals Board shall mail or personally deliver a copy to the opposing party, certifying on the paper filed with the Appeals Board, or on the letter transmitting it, that a copy has been furnished.</text> </regulation> <regulation prefix="Regulation" num=".17" heading="Hearings — Where and When Held — Repealed." /> <regulation prefix="Regulation" num=".18" heading="Notice of Hearings — Repealed." /> <regulation prefix="Regulation" num=".19" heading="Unexcused Absence of a Party — Repealed." /> <regulation prefix="Regulation" num=".20" heading="Hearings: Nature, Examination of Witnesses — Repealed." /> <regulation prefix="Regulation" num=".21" heading="Copies of Papers — Repealed." /> <regulation prefix="Regulation" num=".22" heading="Post Hearing Briefs — Repealed." /> <regulation prefix="Regulation" num=".23" heading="Transcript of Proceedings — Repealed." /> <regulation prefix="Regulation" num=".24" heading="Withdrawal of Exhibits — Repealed." /> <regulation prefix="Regulation" num=".25" heading="Suspension of Proceedings."> <text>If it appears that appellant and respondent are in agreement as to the disposition of the controversy or are actively negotiating an agreement, the parties may file a consent motion requesting the Appeals Board to suspend further processing of the appeal, except that, if the Appeals Board is advised thereafter by either party that the controversy has not been disposed of by agreement, the appeal shall be restored to the Appeals Board's calendar without loss of position, if possible.</text> </regulation> <regulation prefix="Regulation" num=".26" heading="Proposed Decisions."> <paragraph num="A."> <text>When Required. In those appeals (except those submitted pursuant to Regulations .11 and .12 of this chapter) where a majority of the Appeals Board members who are to render a decision have not heard the evidence adduced at hearing, the decision of the Appeals Board, if adverse to the appellant, may not be issued until a proposed decision, including findings of fact and conclusions of law, has been served upon the parties. Within 30 days from receipt of this proposed decision, either party may file written exceptions and request oral argument before a majority of the Appeals Board members who are to render the decision. A copy of the exceptions or request for oral argument, or both, shall be served on opposing counsel who shall have 15 days from receipt to respond.</text> </paragraph> <paragraph num="B."> <text>Form of Written Exceptions to Proposed Decision. Written exceptions shall specifically set forth the proposed finding of fact or conclusion of law being excepted to and those portions of the record or applicable law, or both, which are contrary to the proposed finding or conclusion of law specified.</text> </paragraph> <paragraph num="C."> <text>Receipt of Further Evidence. Except as the Appeals Board may otherwise order, no proof may be received in evidence in support of any exception taken to the proposed decision.</text> </paragraph> <paragraph num="D."> <text>Provision for Oral Argument. Requests by either party to appear and offer oral argument to a majority of the Appeals Board members who will issue the formal decision will be granted as a matter of right, provided that a written request is filed within 30 days from the date of receipt of the proposed decision. The parties thereafter shall be given notice of the time and place set for the argument.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".27" heading="Formal Decision."> <text>Decisions of the Appeals Board will be made in writing and authenticated copies will be forwarded simultaneously to both parties. Except as provided for in Regulation .12 of this chapter, the decision of a majority of three Appeals Board members shall constitute the decision of the Appeals Board. Decisions of the Appeals Board will be based solely upon the record, as described in Regulation .13 of this chapter. The regulations of the Appeals Board and all final orders and decisions shall be open for public inspection at the Appeals Board’s office. For purposes of judicial review as provided for under State Finance and Procurement Article, §15-223, and State Government Article, §10-222, Annotated Code of Maryland, and Title 7, Chapter 200 of the Md. Rules, an action of the Appeals Board shall be deemed final 30 days from the date of receipt by the parties of the Appeals Board’s decision under this regulation or, in the event of a motion for reconsideration, from the date of receipt by the parties of the Appeals Board's ruling thereon.</text> </regulation> <regulation prefix="Regulation" num=".28" heading="Motion for Reconsideration — Repealed." /> <regulation prefix="Regulation" num=".29" heading="Dismissal Without Prejudice."> <text>In certain cases, appeals docketed before the Appeals Board are required to be placed in a suspense status and the Appeals Board is unable to proceed with the disposition of them for reasons not within its control. If the suspension has continued, or it appears that it will continue, for an inordinate length of time, the Appeals Board may dismiss these appeals from its docket without prejudice to their restoration when the cause of suspension has been removed. Unless either party or the Appeals Board acts within 3 years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice.</text> </regulation> <regulation prefix="Regulation" num=".30" heading="Dismissal for Failure to Prosecute."> <text>If a record discloses the failure of either party to file documents required by these regulations, respond to notices or correspondence from the Appeals Board, comply with orders of the Appeals Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Appeals Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If the offending party fails to show cause, the Appeals Board may take such action as it deems reasonable and proper under the circumstances.</text> </regulation> <regulation prefix="Regulation" num=".31" heading="Sanctions — Repealed." /> <regulation prefix="Regulation" num=".32" heading="Costs Incurred by Contractor."> <paragraph num="A."> <text>The Appeals Board may award to a contractor the reasonable cost of filing and pursuing a claim, including reasonable attorney’s fees, if the Appeals Board finds that the conduct of the unit in processing a contract claim is in bad faith, without substantial justification, or in violation of law. Any allegations of bad faith, lack of substantial justification, or violation of law must be plead with particularity during the course of the proceedings before the Appeals Board.</text> </paragraph> <paragraph num="B."> <text>A request for award of costs incurred by the contractor in filing and pursuing a claim shall be made by written motion filed within 15 calendar days of the decision by the Appeals Board finding that the conduct of the unit in processing a contract claim is in bad faith, without substantial justification, or in violation of law. The motion shall specify all costs being requested, shall be substantiated by documented evidence, and the contractor shall certify under oath or affirmation its costs in filing and pursuing a claim. Upon request of a party or on its own initiative, the Appeals Board may conduct a hearing to determine the reasonableness of the costs and fees claimed.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 15-210—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .25 and .26 repealed effective October 10, 1983 (10:20 Md. R. 1791)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 repealed effective August 24, 2020 (47:17 Md. R. 797)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12B amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12C, D amended effective August 24, 2020 (47:17 Md. R. 797)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12E repealed effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14D, E, I amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15A, C amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .20A amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .22C, D amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .27 amended effective May 7, 2018 (45:9 Md. R. 463); August 24, 2020 (47:17 Md. R. 797)</annotation> <annotation type="History" subtype="Administrative History">Regulation .28 repealed effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .32 adopted effective November 18, 1996 (23:23 Md. R. 1556)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04A, E amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10A amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 amended effective December 12, 2024 (51:24 Md. R. 1082)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13A, B amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14 amended effective April 18, 2022 (49:8 Md. R. 500)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14B, C amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15A amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulations .17—.24 repealed as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); repealed permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .25 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .31 repealed as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); repealed permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .32 amended effective March 17, 2025 (52:5 Md. R. 239)</annotation> </annotations> </chapter> <chapter num="07" heading="Maryland State Board of Contract Appeals — Procedures for Appealing Protests"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Days”, for purposes of Regulations .01—.08 of this chapter, means working days of the State government. However, an appeal must be filed within the number of calendar days set forth in COMAR 21.10.02.10.</text> </paragraph> <paragraph num="(2)"> <text>“File” means receipt in the offices of the Appeals Board.</text> </paragraph> <paragraph num="(3)"> <text>“Protester” means an actual or prospective bidder, offeror, contractor, or applicant who appeals from the final action taken by a State agency pursuant to the applicable regulations governing protests.</text> </paragraph> <paragraph num="(4)"> <text>“Submit” means receipt in the offices of the Appeals Board.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Filing of Appeal."> <paragraph num="A."> <text>An interested party may appeal a final action of a State agency taken pursuant to COMAR 21.10.02.10.</text> </paragraph> <paragraph num="B."> <text>The notice of appeal shall be in writing and addressed to the Appeals Board.</text> </paragraph> <paragraph num="C."> <text>The notice of appeal shall:</text> <paragraph num="(1)"> <text>Include the name and address of the protester;</text> </paragraph> <paragraph num="(2)"> <text>Identify the State agency, the number of the solicitation or application, and, if applicable, the contract;</text> </paragraph> <paragraph num="(3)"> <text>Contain a statement of the grounds of appeal; and</text> </paragraph> <paragraph num="(4)"> <text>Specify the ruling requested from the Appeals Board.</text> </paragraph> </paragraph> <paragraph num="D."> <text>The protester shall attach to the notice of appeal a copy of the State agency final action from which the appeal is being taken and any supporting exhibits relied upon. If all exhibits are not available at the time of filing, those documents that are unavailable shall be listed, and an expected date of availability or, if unknown, an explanation as to why they are unavailable shall be provided.</text> </paragraph> <paragraph num="E."> <text>Formal briefs or other technical forms of pleading or motion are not required, but the notice of appeal and other submissions should be concise, logically arranged, and direct.</text> </paragraph> <paragraph num="F."> <text>The Board may consolidate appeals when the parties agree via joint motion or at its own discretion.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Notice of Appeal to State Agency and Interested Parties, Submission of Agency Report and Time for Filing Comments on Agency Report."> <paragraph num="A."> <text>The Appeals Boards shall notify the State agency by telephone, email, or otherwise in writing within 1 day of the receipt of an appeal, requesting the State agency to give notice of the appeal to the awardee if award has been made or, if no award has been made, to all bidders, offerors, or applicants who appear to have a substantial and reasonable prospect of receiving an award if the appeal is denied. The State agency also shall be requested to furnish copies of the appeal documents to these parties with instructions for them to communicate further directly with the Appeals Board.</text> </paragraph> <paragraph num="B."> <text>Material submitted by a protester may not be withheld from any interested party outside the State government or from any State agency which may be involved in the appeal except to the extent that the withholding of information is permitted or required by law. If the protester considers that its notice of appeal contains material that should be withheld, a statement advising of this fact shall be affixed to the front page of the notice of appeal and the alleged proprietary information shall be so identified wherever it appears.</text> </paragraph> <paragraph num="C."> <text>The Appeals Board shall request the Office of the Attorney General, in conjunction with the State agency, to submit a complete report on the actions taken by the agency with regard to the solicitation or application involved in the appeal within 15 working days, or, for good cause shown, at such later time as the Appeals Board may determine, and to furnish a copy of the report to the protester and other interested parties. The report shall include:</text> <paragraph num="(1)"> <text>A copy of the bid, offer, or application submitted by the protester and a copy of the bid, offer, or application that is being considered for award or that has resulted in an award;</text> </paragraph> <paragraph num="(2)"> <text>A copy of the solicitation, including the specifications or portions hereof, relevant to the appeal;</text> </paragraph> <paragraph num="(3)"> <text>A copy of the abstract of bids or relevant portions thereof;</text> </paragraph> <paragraph num="(4)"> <text>A copy of all evaluators' notes relating to the evaluations of all bids, offers, or applications, with the names of the evaluators redacted to protect their identities;</text> </paragraph> <paragraph num="(5)"> <text>Any other documents which are relevant to the appeal; and</text> </paragraph> <paragraph num="(6)"> <text>A statement setting forth findings, actions, and recommendations in the matter together with any additional evidence or information deemed necessary in determining the validity of the appeal. The statement shall be fully responsive to the allegations set forth in the notice of appeal.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Upon the filing of a preliminary motion to dismiss an appeal on the grounds that the Appeals Board lacks jurisdiction to hear the appeal, the Board may stay the time for filing the agency report at the request of the State agency or at its own discretion.</text> </paragraph> <paragraph num="E."> <text>Comments on the agency report shall be filed with the Appeals Board within 10 days after receipt of the report, with a copy to the Office of the Attorney General on behalf of the State agency that furnished the report, and to any interested parties. Any rebuttal to these comments by a protester or interested party shall be filed with the Appeals Board within 5 days after receipt of those comments to which rebuttal is directed, with a copy to the Office of the Attorney General on behalf of the State agency that furnished the report, and to any interested parties. The State agency may also submit rebuttal if filed within 5 days after receipt by the State agency of the comments to which rebuttal is directed.</text> </paragraph> <paragraph num="F."> <text>The failure of a protester or any interested party to comply with the time limits stated in this regulation may result in resolution of the appeal without consideration of the comments untimely filed.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Furnishing of Information on Protests and Discovery."> <paragraph num="A."> <text>Discovery shall be limited to requests for production of documents unless the Appeals Board finds that extraordinary circumstances require limited additional discovery to avoid either substantial unfairness or prejudice.</text> </paragraph> <paragraph num="B."> <text>The Appeals Board, upon request, shall make available to any interested party information bearing on the substance of the appeal that has been submitted by other interested parties or the State agency, except to the extent that withholding of information is permitted or required by law or regulation. Any comments shall be submitted within 10 days.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Time for Submission of Additional Information."> <text>Any additional information requested by the Appeals Board from the protester, interested parties, or the State agency shall be submitted not later than 5 days after receipt of the request.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Hearing."> <paragraph num="A."> <text>A hearing on the merits of the appeal shall be conducted at the request of the protester, any other interested party, the State agency, or by order of the Appeals Board. Request for a hearing shall be made before the expiration of the time period allowed for filing comments on the State agency report. Except in unusual circumstances, requests for a hearing received after this time will not be honored.</text> </paragraph> <paragraph num="B."> <text>Hearings normally will be held after expiration of the period allowed for filing comments on the agency report. All interested parties shall be notified as to the time and place of the hearing and shall be permitted to participate.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Briefs."> <text>Post hearing briefs, when deemed appropriate by the Appeals Board, shall be submitted within 5 days of the date on which the hearing was conducted. If a hearing is not requested, the Appeals Board will set a date for the filing of briefs.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Decision."> <text>All appeals shall be decided upon the written record submitted to the Appeals Board, testimony given at the hearing, documents and other evidence admitted at the hearing, and such additional information as may be requested by the Appeals Board.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Costs Incurred by Interested Party."> <paragraph num="A."> <text>The Appeals Board may award an interested party the reasonable costs of filing and pursuing a protest, including reasonable attorney’s fees, if:</text> <paragraph num="(1)"> <text>The interested party appeals the final action of an agency on a protest;</text> </paragraph> <paragraph num="(2)"> <text>The Appeals Board sustains the appeal; and</text> </paragraph> <paragraph num="(3)"> <text>The Appeals Board finds that there has been a violation of law or regulation.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A request for award of costs incurred by the interested party in filing and pursuing a protest shall be made by written motion filed within 15 calendar days of the decision by the Appeals Board finding a violation of law or regulation. The motion shall specify all costs being requested, shall be sustained by documented evidence, and the interested party shall certify under oath or affirmation its costs in filing and pursuing a protest. Upon request of a party or on its own initiative, the Appeals Board may conduct a hearing to determine the reasonableness of the cost and fees claimed.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 15-201—15-223, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02F adopted effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective October 9, 2017 (44:20 Md. R. 946)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C, D amended effective April 18, 2022 (49:8 Md. R. 500)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended as an emergency provision effective September 9, 2021 (48:21 Md. R. 883); emergency status extended to July 3, 2022 (49:3 Md. R. 137); amended permanently effective February 21, 2022 (49:4 Md. R. 302)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06A amended effective May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective October 10, 1983 (10:20 Md. R. 1792); May 7, 2018 (45:9 Md. R. 463)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08C repealed effective September 13, 1982 (9:18 Md. R. 1801)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 adopted effective November 20, 1994 (21:23 Md. R. 1936)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective March 17, 2025 (52:5 Md, R. 239)</annotation> </annotations> </chapter> <chapter num="08" heading="Prompt Payment of Subcontractors"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>Undisputed Amount.</text> <paragraph num="(a)"> <text>“Undisputed amount” means an amount owed by a contractor to a subcontractor or supplier for which there is no good faith dispute, including any retainage withheld.</text> </paragraph> <paragraph num="(b)"> <text>“Undisputed amount” includes an amount withheld because of a dispute arising out of an agreement or occurrence unrelated to the agreement under which the amount is withheld.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Prime contractor” means a person or firm that has a State procurement contract with a unit.</text> </paragraph> <paragraph num="(3)"> <text>Contractor.</text> <paragraph num="(a)"> <text>“Contractor” means a person or firm that:</text> <paragraph num="(i)"> <text>Has an agreement to perform all or some of the work required under a State contract; and</text> </paragraph> <paragraph num="(ii)"> <text>Subcontracts with another person or firm for performance of all or some of the work required under the contract.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Contractor” includes a prime contractor and a subcontractor at any tier.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>“Subcontractor” means a person or firm that has an agreement with a contractor to perform all or some of the contractor's work under a State contract.</text> </paragraph> <paragraph num="(5)"> <text>“Supplier” has the same definition set forth in State Finance and Procurement Article. §15–226, Annotated Code of Maryland, and COMAR 21.01.02.01.B.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Policy."> <text>It is the policy of the State that a contractor shall promptly pay to a subcontractor or supplier any undisputed amount to which the subcontractor or supplier is entitled for work under a State procurement contract.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Responsibilities."> <paragraph num="A."> <text>A contractor who receives a progress payment or a final payment shall pay a subcontractor or supplier an undisputed amount to which the subcontractor or supplier is entitled within 10 calendar days of receiving the payment.</text> </paragraph> <paragraph num="B."> <text>If a contractor withholds payment from a subcontractor or supplier within the time period in which the payment normally would be made, the contractor shall:</text> <paragraph num="(1)"> <text>Notify the subcontractor or supplier in writing and state the reason why payment is being withheld;</text> </paragraph> <paragraph num="(2)"> <text>Provide a copy of the notice to the prime contractor or supplier and, if different, to the person or firm that made the progress payment or final payment to the contractor; and</text> </paragraph> <paragraph num="(3)"> <text>Provide a copy of the notice to the procurement officer.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Written Notice of Nonpayment.</text> <paragraph num="(1)"> <text>If a subcontractor or supplier does not receive a payment within the required time period, the subcontractor or supplier shall give written notice of the nonpayment to the procurement officer.</text> </paragraph> <paragraph num="(2)"> <text>The notice shall:</text> <paragraph num="(a)"> <text>Indicate the:</text> <paragraph num="(i)"> <text>Name of the contractor and, if different, of the prime contractor;</text> </paragraph> <paragraph num="(ii)"> <text>Project under which the dispute exists; and</text> </paragraph> <paragraph num="(iii)"> <text>Amount in dispute;</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Provide an itemized description on which the amount is based; and</text> </paragraph> <paragraph num="(c)"> <text>If known, provide an explanation for any dispute concerning the payment not received.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Duties."> <paragraph num="A."> <text>Within 2 business days of receipt of written notice from a subcontractor or supplier, a representative of the unit designated by the procurement officer shall verbally contact the contractor that withheld payment to ascertain whether the amount withheld is an undisputed amount.</text> </paragraph> <paragraph num="B."> <text>If the representative of the unit determines that a part or all of the amount withheld is an undisputed amount, the representative of the unit shall instruct the contractor that withheld payment to pay the subcontractor or supplier the undisputed amount within 3 business days. The instruction shall be confirmed in writing.</text> </paragraph> <paragraph num="C."> <text>The representative of the unit shall verbally communicate to the subcontractor or supplier the results of discussions with the contractor that withheld payment.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Actions."> <paragraph num="A."> <text>If the contractor fails to pay the subcontractor or supplier the undisputed amount within the time instructed to do so under Regulation .04B of this chapter, the subcontractor or supplier may report the nonpayment in writing to the procurement officer.</text> </paragraph> <paragraph num="B."> <text>Meeting.</text> <paragraph num="(1)"> <text>If the subcontractor or supplier notifies the procurement officer in writing under §A of this regulation that payment has not been made, the representative of the unit shall schedule a meeting to discuss the dispute with the unit's project manager, the contractor, the subcontractor or supplier, and any other person or entity that the representative considers to have an interest in the matter:</text> <paragraph num="(a)"> <text>At a time and location designated by the representative of the unit; but</text> </paragraph> <paragraph num="(b)"> <text>Not later than 10 calendar days after receiving written notice from the subcontractor or supplier under §A of this regulation.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The purpose of the meeting is to establish why the contractor has not paid the subcontractor or supplier in the required time period.</text> </paragraph> <paragraph num="(3)"> <text>The representative of the unit shall require the parties to provide at the meeting any information that the representative believes necessary to evaluate the dispute.</text> </paragraph> <paragraph num="(4)"> <text>The procurement officer may require the parties to submit documentation that the procurement officer deems appropriate.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Remedies."> <paragraph num="A."> <text>If the representative of the unit determines that the contractor is delinquent in payment of an undisputed amount to the subcontractor or supplier, the representative may order that further progress payments to the contractor that withheld payment shall be withheld until the subcontractor or supplier is paid.</text> </paragraph> <paragraph num="B."> <text>If payment is not paid to the subcontractor or supplier within 7 business days after the representative of the unit determines that the contractor is delinquent in paying the subcontractor or supplier under §A of this regulation, the representative shall schedule a second meeting to address the dispute:</text> <paragraph num="(1)"> <text>At a time and location designated by the representative of the unit; but</text> </paragraph> <paragraph num="(2)"> <text>Not later than 5 business days after the close of the 7-day period.</text> </paragraph> </paragraph> <paragraph num="C."> <text>If, at the completion of the second meeting, the representative of the unit determines that the contractor continues to be delinquent in payments owed to the subcontractor or supplier, the representative:</text> <paragraph num="(1)"> <text>Shall order that further payments to the contractor not be processed until payment to the subcontractor or supplier is verified;</text> </paragraph> <paragraph num="(2)"> <text>May order that all or some of the work under the contract or subcontract be suspended without affecting the contractually required completion date for the work, based on the failure of the contractor to meet obligations under the contract;</text> </paragraph> <paragraph num="(3)"> <text>If the contractor is not a prime contractor, may order that the prime contractor act as a representative of the unit and:</text> <paragraph num="(a)"> <text>Pay or cause payment of an amount determined as undisputed, together with any penalty assessed against the contractor under §C(4) of this regulation, to be made to the subcontractor or supplier from monies otherwise due or that may become due under the State contract for the contractor’s work;</text> </paragraph> <paragraph num="(b)"> <text>From monies otherwise due or that may become due under the State contract for the contractor's work, place a payment for an undisputed amount and any penalty in an interest-bearing escrow account rather than making the payment to the subcontractor or supplier; or</text> </paragraph> <paragraph num="(c)"> <text>Take other or further actions to resolve the dispute; and</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>Subject to §D of this regulation, may order that the contractor pay a penalty to the subcontractor or supplier, in an amount not exceeding $100 per day, from the date that payment was required under Regulation .04B of this chapter.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A penalty may not be imposed under §C(3) of this regulation for any period that the representative of the unit determines the subcontractor or supplier was not diligent in reporting nonpayment to the procurement officer.</text> </paragraph> <paragraph num="E."> <text>A prime contractor and each contractor to whom an instruction or order is directed under this regulation shall comply with the instruction or order.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Appeal."> <paragraph num="A."> <text>A contractor or a subcontractor or supplier may appeal a decision under Regulation .06C of this chapter to the procurement officer.</text> </paragraph> <paragraph num="B."> <text>The contractor shall comply with the procurement officer's decision.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Decision."> <paragraph num="A."> <text>An act, failure to act, or decision of a procurement officer or a representative of a unit, concerning a payment dispute between a contractor and subcontractor or supplier under this chapter, may not:</text> <paragraph num="(1)"> <text>Affect the rights of the contracting parties under any other provision of law;</text> </paragraph> <paragraph num="(2)"> <text>Be used as evidence on the merits of a dispute between the unit and the contractor or the contractor and the subcontractor or supplier in any other proceeding; or</text> </paragraph> <paragraph num="(3)"> <text>Result in liability or prejudice the rights of the unit or a prime contractor that acts as a representative of a unit under Regulation .06C(3) of this chapter.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A decision of a procurement officer or a representative of the unit designated by the procurement officer under this chapter is not subject to judicial review or the provisions of COMAR 21.10.04.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §15-226, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: October 2, 2000 (27:19 Md. R. 1730)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective July 9, 2001 (28:13 Md. R. 1216); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective July 9, 2001 (28:13 Md. R. 1216); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective July 9, 2001 (28:13 Md. R. 1216); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .045 amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective July 9, 2001 (28:13 Md. R. 1216)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective July 9, 2001 (28:13 Md. R. 1216); September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07A amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08A amended effective July 9, 2001 (28:13 Md. R. 1216); March 3, 2025 (52:4 Md. R. 221)</annotation> </annotations> </chapter> </subtitle> <subtitle num="11" heading="Socioeconomic Policies"> <chapter num="01" heading="Small Business Procurements"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Certified small business” (“CSB”) means a business, other than a nonprofit business, that:</text> <paragraph num="(a)"> <text>Is certified by the Governor's Office of Small, Minority, and Women Business Affairs pursuant to regulations adopted by that Department; and</text> </paragraph> <paragraph num="(b)"> <text>Meets the criteria for a small business as defined under COMAR 21.01.02.01B.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Disabled veteran” means a veteran who has been certified by the U.S. Department of Veterans Affairs as having a service-connected disability, regardless of the disability rating.</text> </paragraph> <paragraph num="(3)"> <text>“Disabled-veteran-owned small business” means a small business as defined under COMAR 21.01.02.01B that is at least 51 percent owned and controlled by one or more individuals who are disabled veterans.</text> </paragraph> <paragraph num="(4)"> <text>“Economically disadvantaged individual” means an individual as defined in COMAR 21.11.03.03.B.</text> </paragraph> <paragraph num="(5)"> <text>“Veteran” means a veteran as defined in 38 U.S.C. §101(2) who is domiciled in Maryland.</text> </paragraph> <paragraph num="(6)"> <text>“Veteran-owned small business” means a small business as defined under COMAR 21.01.02.01B that is at least 51 percent owned and controlled by one or more individuals who are veterans.</text> </paragraph> <paragraph num="(7)"> <text>“Small business reserve” means those procurements that are limited to responses from small businesses as provided under State Finance and Procurement Article, §14–502(c), Annotated Code of Maryland.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Small Business Procurement Programs."> <paragraph num="A."> <text>Two distinct procurement programs, the small business preference program and the small business reserve program, are structured to assist small businesses in obtaining State contracts.</text> </paragraph> <paragraph num="B."> <text>The small business preference program specifically authorizes a procuring unit to apply certain percentage price preferences in favor of certified small businesses when evaluating and awarding bids on those procurements designated for a small business preference.</text> </paragraph> <paragraph num="C."> <text>Except as provided in Regulation .06A(3) of this chapter, the small business reserve program applies to all procurements by a procurement unit and restricts award of a contract to certified small businesses only.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="General."> <paragraph num="A."> <text>A procurement under this chapter is subject to all requirements and procedures otherwise applicable to the procurement. Except as otherwise provided by law, the provisions of this chapter supplement, but do not replace, other provisions of this title.</text> </paragraph> <paragraph num="B."> <text>Small Business Assistance. The head of each participating procurement agency or a designee shall:</text> <paragraph num="(1)"> <text>Assist small businesses in complying with the procedures for submitting bids and proposals on State contracts; and</text> </paragraph> <paragraph num="(2)"> <text>Consistent with the provisions of this title, attempt to simplify procedures, when practicable, to increase the opportunities for small businesses to participate in preference and reserve procurements.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Rejection of Bids or Proposals. The procurement officer shall notify a small business of the reason for rejection of its bid or proposal under a small business preference or a small business reserve procurement.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Small Business Eligibility/Certification."> <paragraph num="A."> <text>To be eligible to receive a small business price preference under the small business preference program, or to be eligible for award of a procurement under the small business reserve program, a business must be certified by the Governor’s Office of Small, Minority, and Women Business Affairs as a small business in accordance with regulations adopted by the Governor’s Office of Small, Minority, and Women Business Affairs. A business so certified shall be added to the certified small business list maintained by the Governor’s Office of Small, Minority, and Women Business Affairs. To maintain its certification as a small business, a business shall reapply for certification every year, not later than on the anniversary date of the initial certification.</text> </paragraph> <paragraph num="B."> <text>The Governor’s Office of Small, Minority, and Women Business Affairs shall certify a business as a small business for the exclusive purpose of pursuing out-of-State contracts if the business has:</text> <paragraph num="(1)"> <text>250 or fewer employees; or</text> </paragraph> <paragraph num="(2)"> <text>Average annual gross receipts of $10,000,000 or less averaged over its most recently completed 3 fiscal years.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Affidavit. Upon request of the Governor’s Office of Small, Minority, and Women Business Affairs, a business seeking certification or recertification as a small business shall execute and submit a Small Business Affidavit in the form prescribed under §E of this regulation.</text> </paragraph> <paragraph num="D."> <text>Other Information. The Governor’s Office of Small, Minority, and Women Business Affairs may, in its sole discretion, request any other information in support of the certification request.</text> </paragraph> <paragraph num="E."> <text>Affidavit Form. The Small Business Affidavit shall be in the following form:</text> <paragraph num="1."> <text>I am the _____________________________(type or print legibly your title, office, or capacity) of ________________(type or print legibly the correct and complete company name) hereinafter referred to as the “Business.”</text> </paragraph> <paragraph num="2."> <text>The Business is:</text> <paragraph num="(a)"> <text>a for-profit enterprise;</text> </paragraph> <paragraph num="(b)"> <text>not a broker, as defined in COMAR 21.01.02.01B(13-1);</text> </paragraph> <paragraph num="(c)"> <text>independently owned and operated;</text> </paragraph> <paragraph num="(d)"> <text>not a subsidiary of another business;</text> </paragraph> <paragraph num="(e)"> <text>not dominant in its field of operation;</text> </paragraph> <paragraph num="(f)"> <text>With respect to employees, either:</text> <paragraph num="(i)"> <text>The wholesale operations of the Business did not employ more than 50 persons in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(ii)"> <text>The retail operations of the Business did not employ more than 25 persons in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(iii)"> <text>The manufacturing operations of the Business did not employ more than 100 persons in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(iv)"> <text>The service operations of the Business did not employ more than 100 persons in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(v)"> <text>The construction operations of the Business did not employ more than 50 persons in its most recently completed 3 fiscal years; or</text> </paragraph> <paragraph num="(vi)"> <text>The architect and engineering services of the Business did not employ more than 100 persons in its most recently completed 3 fiscal years; and</text> </paragraph> </paragraph> <paragraph num="(g)"> <text>With respect to gross sales:</text> <paragraph num="(i)"> <text>The gross sales of its wholesale operations did not exceed an average of $4,000,000 in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(ii)"> <text>The gross sales of its retail operations did not exceed an average of $3,000,000 in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(iii)"> <text>The gross sales of its manufacturing operations did not exceed an average of $2,000,000 in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(iv)"> <text>The gross sales of its service operations did not exceed an average of $10,000,000 in its most recently completed 3 fiscal years;</text> </paragraph> <paragraph num="(v)"> <text>The gross sales of its construction operations did not exceed an average of $7,000,000 in its most recently completed 3 fiscal years; and</text> </paragraph> <paragraph num="(vi)"> <text>The gross sales of its architectural and engineering operations did not exceed an average of $4,500,000 in its most recently completed 3 fiscal years.</text> </paragraph> <aftertext>Note: If a business has not existed for 3 years, the employment and gross sales shall be the average(s) for each year or part of year during which the business has been in existence.</aftertext> </paragraph> </paragraph> <paragraph num="3."> <text>For the exclusive purpose of pursuing out-of-State contracts, the business has:</text> <paragraph num="(a)"> <text>250 or fewer employees; or</text> </paragraph> <paragraph num="(b)"> <text>Average annual gross receipts of $10,000,000 or less averaged over its most recently completed three fiscal years.</text> </paragraph> </paragraph> <paragraph num="4."> <text>For small businesses claiming an additional percentage preference for being veteran-owned (2%) or disabled-veteran-owned (3%), initial next to the applicable statement:</text> </paragraph> <paragraph num="5."> <text>I am fully authorized by the Business to provide this Affidavit.</text> </paragraph> <paragraph num="6."> <text>Upon request of the State of Maryland, the Business promises to provide the State promptly with copies of the complete federal and state (all states in which the Business filed returns) income tax returns for the most recently completed 3 fiscal years of the Business.</text> </paragraph> <paragraph num="7."> <text>I understand that the State of Maryland may rely upon this affidavit and that if the information provided by me in this certification is false I may be subject to criminal prosecution for perjury, procurement fraud, and other crimes and any contract awarded to the Business in reliance upon this Affidavit may be void or subject to termination for default.</text> </paragraph> <aftertext>UNDER PENALTIES OF PERJURY, I hereby swear that the matters stated in this Affidavit are true.</aftertext> </paragraph> <paragraph num="F."> <text>Penalties for Submitting False Information. If information provided by the business in the affidavit or by other means is materially false, the bidder or offeror and the individual providing the false information may be subject to criminal prosecution for perjury, procurement fraud, and other crimes and may be subject to debarment, and all contract awards to the business in reliance upon the inaccurate affidavit or other information may be void or subject to termination for default.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Small Business Preference Program."> <paragraph num="A."> <text>Applicability. The small business preference program applies to procurements by a procuring unit.</text> </paragraph> <paragraph num="B."> <text>Procedures.</text> <paragraph num="(1)"> <text>Designation of Small Business Preference Contracts. The heads of procurement units or their designees shall screen all procurements potentially eligible for a small business preference and shall determine which of those procurements shall be made under these procedures and the percentage preference to be applied. The determination shall be based on the availability of qualified, certified small businesses and other appropriate factors.</text> </paragraph> <paragraph num="(2)"> <text>Solicitation Notice.</text> <paragraph num="(a)"> <text>A published solicitation for a procurement designated for a small business preference shall include a statement that the procurement has been so designated and shall indicate the price preference percentage to be applied. A designated price preference may not exceed a base percentage preference of 5 percent of the total contract value. A 2 percent preference may be added to the base percentage preference for veteran-owned small businesses and a 3 percent preference may be added to the base percentage preference for disabled-veteran-owned small businesses.</text> </paragraph> <paragraph num="(b)"> <text>The small business preference notice contained in the solicitation shall be substantially as follows:</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Direct Solicitation. When soliciting bids for a procurement designated for a small business preference, the procuring unit shall send a solicitation or notice of the solicitation to all certified small businesses for the subject of the contract contained on the Governor’s Office of Small, Minority, and Women Business Affairs Certified Small Businesses List. When soliciting bids under the small business preference program, others selected from the business community at large, including certified minority business enterprises, shall also be solicited.</text> </paragraph> <paragraph num="(4)"> <text>Evaluation. When a procurement under COMAR 21.05.02 has been designated for a small business preference, the procurement officer shall accept the most favorable responsive bid from a responsible small business if the bid does not exceed the most favorable responsive bid price received from a responsible bidder that is not certified as a small business by:</text> <paragraph num="(a)"> <text>More than 5 percent;</text> </paragraph> <paragraph num="(b)"> <text>More than 7 percent for a veteran-owned small business;</text> </paragraph> <paragraph num="(c)"> <text>More than 8 percent for a disabled-veteran-owned small business; or</text> </paragraph> <paragraph num="(d)"> <text>The predetermined percentage preference.</text> </paragraph> </paragraph> <aftertext>Small Business Preference (base percentage preference of 5 percent unless otherwise provided)</aftertext> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Small Business Reserve Program."> <paragraph num="A."> <text>Applicability.</text> <paragraph num="(1)"> <text>All procurements by a procurement unit are eligible for designation as small business reserve procurements.</text> </paragraph> <paragraph num="(2)"> <text>A procurement with a total dollar value between $50,000 and $500,000 shall be designated for the small business reserve.</text> </paragraph> <paragraph num="(3)"> <text>Exemptions. The requirements of the Small Business Reserve Program do not apply to the following procurements:</text> <paragraph num="(a)"> <text>Preference procurements made from a preference provider (Maryland Correctional Enterprises, community service providers, Blind Industries and Services of Maryland, individual-with-disability-owned businesses, and the Maryland Vending Facilities Program for the Blind) under COMAR 21.11.05 and 21.11.09.</text> </paragraph> <paragraph num="(b)"> <text>Procurements involving expenditures of federal dollars, to the extent that their inclusion in the program is in violation of federal law or grant provisions.</text> </paragraph> <paragraph num="(c)"> <text>Procurements with a total dollar value under $50,000.</text> </paragraph> <paragraph num="(d)"> <text>Procurements for human, social, cultural, or educational services.</text> </paragraph> <paragraph num="(e)"> <text>Certain term and master contract procurements when the Governor’s Office of Small, Minority & Women Business Affairs certifies, concurrently with review of any waiver determinations for certified minority business enterprise participation contract goals, that it is not practicable to designate the procurement for the small business reserve.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>Scope. To the extent practicable, each procurement unit shall structure its procurement procedures to achieve the result that a minimum of 20 percent of the unit's total dollar value of procurements for goods, supplies, services, maintenance, construction, construction-related services, architectural services, and engineering services are expended directly with certified small businesses at the prime contract level.</text> </paragraph> <paragraph num="C."> <text>Exclusion. For purposes of computing the procurement units total dollar value of procurements, exempt procurements under §A(2) of this regulation are excluded.</text> </paragraph> <paragraph num="D."> <text>Expenditures.</text> <paragraph num="(1)"> <text>Forecasts. Each procurement unit shall, based upon the approved budget and other applicable factors, annually prepare a fiscal year procurement expenditure forecast. The forecast shall project expected expenditures under procurements to be awarded or currently under contract, and the unit shall develop a plan allocating a minimum of 20 percent of the total expected expenditures under these contracts directly to certified small businesses.</text> </paragraph> <paragraph num="(2)"> <text>Included and Excluded Expenditures.</text> <paragraph num="(a)"> <text>Expenditures in a current fiscal year under a multiyear contract awarded in a prior fiscal year shall be included in the procurement unit's forecast and counted toward both total procurement dollars and small business reserve dollars, as applicable. This excludes expenditures under contracts awarded before October 1, 2004.</text> </paragraph> <paragraph num="(b)"> <text>A procuring unit may apply toward the unit's overall annual Small Business Reserve achievement awards made to a small business under designated small business reserve contracts as well as awards made to a small business under nondesignated small business reserve contracts.</text> </paragraph> <paragraph num="(c)"> <text>Expenditures to certified small businesses awarded under small business reserve procurements may be included towards attainment of the small business reserve amount notwithstanding the procurement method used.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Solicitation Notice. Each solicitation for bids or proposals for a procurement designated for a small business reserve shall include the following notice:</text> </paragraph> <paragraph num="F."> <text>Ineligible Bids or Proposals. Under a small business reserve procurement, a business that is not a certified small business is ineligible for award of a contract.</text> </paragraph> <paragraph num="G."> <text>Before awarding a contract under a procurement designated as a small business reserve procurement, the procurement officer shall verify that the apparent awardee is certified by the Governor's Office of Small, Minority, and Women Business Affairs as a small business. A procurement contract award under a small business reserve procurement may not be made to a business that has not been certified.</text> </paragraph> <paragraph num="H."> <text>Reporting. The procurement units shall submit a report on the Small Business Reserve Program annually as required under COMAR 21.13.01.03B.</text> </paragraph> <paragraph num="I."> <text>SBR Liaison Officer. The head of each procurement unit shall designate an employee to be the SBR liaison officer in the administration of that unit’s small business reserve program. The SBR liaison officer shall be a high-level employee reporting directly to a Secretary, Deputy Secretary, or head of a procurement agency. The SBR liaison officer shall be responsible for coordinating the procurement unit’s outreach efforts to the small business community, reviewing the unit’s contracting procedures to ensure compliance with small business reserve requirements, assisting in the resolution of small business reserve contracting issues, and submitting required small business reserve program reports or information.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 14-201—14-208, and 14-501—14-505, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01 and .02 repealed and new Regulations .01—.06 adopted effective July 4, 2005 (32:13 Md. R. 1117)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective February 23, 2009 (36:4 Md. R. 355); February 7, 2011 (38:3 Md. R. 152); March 11, 2019 (46:5 Md. R. 310); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective March 11, 2019 (46:5 Md. R. 310); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04D amended effective February 23, 2009 (36:4 Md. R. 355); February 7, 2011 (38:3 Md. R. 152); May 13, 2013 (40:8 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective March 12, 2007 (34:5 Md. R. 562); July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06A amended effective March 13, 2006 (33:5 Md. R. 523); February 23, 2009 (36:4 Md. R. 355); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B, D amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06D, G amended effective September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06E amended effective February 23, 2009 (36:4 Md. R. 355); May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06I adopted effective November 24, 2014 (41:23 Md. R. 1376)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06I amended effective April 29, 2024 (51:8 Md. R. 369)</annotation> </annotations> </chapter> <chapter num="02" heading="Implementation of the “Buy American Steel” Act"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>The procedures set forth in this chapter apply to all contracts for the:</text> <paragraph num="(1)"> <text>Construction or maintenance of public works; or</text> </paragraph> <paragraph num="(2)"> <text>Purchase or manufacture of any item of machinery or equipment which:</text> <paragraph num="(a)"> <text>Contains at least 10,000 pounds of steel products, and</text> </paragraph> <paragraph num="(b)"> <text>Is to be installed at a public works site.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>These procedures do not apply, however, when they are in conflict with any federal grants or federal regulations affecting a contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms defined.</text> <paragraph num="(1)"> <text>“Steel product” means a product rolled, formed, shaped, drawn, extruded, forged, cast, fabricated, or otherwise similarly processed, or processed by a combination of two or more of these operations, for steel made in the United States by open hearth, basic oxygen, electric furnace, Bessemer, or other steel making process.</text> </paragraph> <paragraph num="(2)"> <text>“Public Works” means all buildings, bridges, roads, streets, alleys, ditches, sewage disposal plants, waterworks, and all other structures or works, constructed for public use or benefit or paid for wholly or in part out of public funds, except work done by any public utility company pursuant to an order of the Public Service Commission or other public authority, whether done under public supervision or direction or paid for wholly or in part out of public funds, unless let to contract.</text> </paragraph> <paragraph num="(3)"> <text>“Install” means to make a part of, although not necessarily a permanent part of. For example, equipment installed at a public works site is equipment made a part of the site but capable of being moved from the site without extensive injury to the site or to the equipment, but which, nevertheless, is anticipated to be kept as a part of the site. Examples include but are not limited to a subway car or a gantry-mounted container crane.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Applicability."> <text>Every contract of the type described in Regulation .01 shall require the use or supply of steel products as defined in these regulations for all steel that is to be incorporated into the work to be performed under the contract, unless the agency head determines that the cost of steel products is unreasonable or the use of these products is inconsistent with the public interest.</text> </regulation> <regulation prefix="Regulation" num=".04" heading="Price of Steel Products."> <text>The price of any steel product of domestic origin is not unreasonable if:</text> <paragraph num="A."> <text>The price does not exceed the sum of the bid or offered price of a similar steel product of foreign origin, plus a differential of 20 percent of the bid or offered price of the steel product of foreign origin; or</text> </paragraph> <paragraph num="B."> <text>The steel product is produced in a “substantial labor surplus area” as defined by the United States Department of Labor and the price does not exceed the sum of the bid or offered price of a similar steel product of foreign origin, plus a differential of 30 percent of the bid or offered price of the steel product of foreign origin.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Exceptions."> <text>At any time before the award of a contract, the agency head or designee may make a determination, that these regulations do not apply to that contract if:</text> <paragraph num="A."> <text>There are reasons to believe that the specified steel products are not produced in the United States in sufficient quantities to meet the requirements of the contract; or</text> </paragraph> <paragraph num="B."> <text>There are reasons to believe that the purchase of domestic steel products for that contract would be inconsistent with the public interest.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Identification of Origin."> <text>If all steel products are not of domestic origin, each bidder or offeror submitting a bid or proposal in response to solicitations for a contract pursuant to Regulation .03 shall identify by name, type, or otherwise, those steel products that are proposed to be of foreign origin, the proposed source of supply, and certify that the bid or offered price of similar domestic steel products is unreasonable pursuant to these regulations.</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Proof of Unreasonable Domestic Steel Price."> <text>When the bidder or offeror proposes to use steel products of foreign origin and that bid or offer is the apparent most favorable bid or most advantageous offer:</text> <paragraph num="A."> <text>Within a reasonable time after bid opening, the bidder or offeror shall submit to the procurement officer, information in support of the claim that the bid or offered price of similar domestic steel products is unreasonable;</text> </paragraph> <paragraph num="B."> <text>The procurement officer may undertake independent investigation of the bid or offered price of similar foreign and domestic steel products.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Rejection of Unsupported Bids."> <text>If a bidder or offeror fails to prove to the satisfaction of the procurement officer that the bid or offered price of domestic steel products is unreasonable, that bid or offer shall be rejected and the procurement officer may award the contract to the responsible bidder or offeror submitting the next most favorable responsive bid or next most advantageous offer.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Verification of Steel Supply Sources."> <text>After award of the contract, the procurement officer is authorized to verify the sources of supply of steel products that are to be incorporated into the work to be performed under that contract.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 17-301—17-306, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended as an emergency provision effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981 (Emergency provisions are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01 and .02 amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulations .02, .04--.08 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Annotation: COMAR 21.11.02.02B cited in Attorney General Opinion No. 81-001 (January 15, 1981) (cited to the previous codification at COMAR</annotation> <annotation type="History" subtype="Administrative History">11.01.12.02B</annotation> </annotations> </chapter> <chapter num="03" heading="Minority Business Enterprise Policies"> <regulation prefix="Regulation" num=".01" heading="General — Purpose."> <text>This chapter provides that maximum contracting opportunities be extended to certified minority business enterprises, as both prime contractors and subcontractors, and establishes that:</text> <paragraph num="A."> <text>The Special Secretary of the Governor's Office of Small, Minority & Women Business Affairs, in consultation with the Secretary of Transportation and the Attorney General, shall establish the overall percentage certified MBE participation goal through regulation on a biennial basis.</text> </paragraph> <paragraph num="B."> <text>The overall percentage certified MBE participation goal set forth in §C applies until a different percentage goal is established in accordance with §A of this regulation.</text> </paragraph> <paragraph num="C."> <text>Each procurement agency shall:</text> <paragraph num="(1)"> <text>Structure its procurement procedures to try to achieve an overall goal of 29 percent of the unit's total dollar value of all procurement contracts made directly or indirectly from certified minority business enterprises; and</text> </paragraph> <paragraph num="(2)"> <text>Apply the guidelines established by the Special Secretary of the Office of Minority Affairs for determining the subgoals to be set for the groups listed in State Finance and Procurement Article, §14-301(j)(1)(i)1, 2, 3, 4, and 6, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="D."> <text>To the maximum extent feasible, procurement agencies shall use race-neutral measures in meeting the goals under §C of this regulation;</text> </paragraph> <paragraph num="E."> <text>Each procurement agency shall work with the Office of Minority Affairs to designate certain contracts to be procured without any certified MBE participation goals.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Scope."> <paragraph num="A."> <text>Except as otherwise provided in §B of this regulation, this chapter applies to every procurement of supplies, services, maintenance, construction, construction-related services, architectural services, and engineering services by a procurement agency.</text> </paragraph> <paragraph num="B."> <text>Small procurements are not subject to Regulations .08—.16 of this chapter. These procurements shall be made in accordance with COMAR 21.05.07. Procurement agencies shall use the Central Directory established in Regulation .06 of this chapter to solicit certified MBEs in small procurements.</text> </paragraph> <paragraph num="C."> <text>Nothing in this chapter is to be construed to relieve a procurement agency from attempting to achieve its goals and subgoals for certified MBE participation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Certification” means a determination by the certification agency through the procedures outlined in this chapter that a legal entity is a minority business enterprise for purposes of these regulations.</text> </paragraph> <paragraph num="(2)"> <text>“Certification agency” means the Department of Transportation, Office of Minority Business Enterprise.</text> </paragraph> <paragraph num="(3)"> <text>“Control” means the exercise of the power to manage and operate a business enterprise.</text> </paragraph> <paragraph num="(4)"> <text>“Certified minority business enterprise” means a minority business enterprise that holds a certification issued by the certification agency.</text> </paragraph> <paragraph num="(5)"> <text>Economically Disadvantaged Individual.</text> <paragraph num="(a)"> <text>“Economically disadvantaged individual” means a socially disadvantaged individual whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged.</text> </paragraph> <paragraph num="(b)"> <text>“Economically disadvantaged individual” does not include an individual whose personal net worth exceeds $1,500,000, as adjusted annually for inflation by the certification agency according to State Finance and Procurement Article, §14-301, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>“Industry type” means the following procurement categories:</text> <paragraph num="(a)"> <text>Construction;</text> </paragraph> <paragraph num="(b)"> <text>Architectural and engineering services and other construction-related professional services;</text> </paragraph> <paragraph num="(c)"> <text>Maintenance;</text> </paragraph> <paragraph num="(d)"> <text>Information technology;</text> </paragraph> <paragraph num="(e)"> <text>Services;</text> </paragraph> <paragraph num="(f)"> <text>Goods, supplies, and equipment; and</text> </paragraph> <paragraph num="(g)"> <text>Real property title insurance services, including commercial real property title insurance services.</text> </paragraph> </paragraph> <paragraph num="(7)"> <text>“Joint venture” means an association of two or more persons to carry out a single business activity for a limited purpose or time.</text> </paragraph> <paragraph num="(8)"> <text>“MBE classification” means the racial, ethnic, or gender classification, as stated in §B(15) of this regulation, assigned to the firm by the certification agency upon the firm obtaining MBE certification.</text> </paragraph> <paragraph num="(9)"> <text>“Minority business enterprise (MBE)” has the meaning stated in COMAR 21.01.02.01B(54).</text> </paragraph> <paragraph num="(10)"> <text>“Office of Minority Affairs” means the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> <paragraph num="(11)"> <text>“Ownership” means:</text> <paragraph num="(a)"> <text>For a sole proprietorship, that the sole proprietor is a socially and economically disadvantaged individual, and if the ownership interest held by a socially and economically disadvantaged individual is subject to formal or informal restrictions such as options, security interests, agreements, etc., held by a person who is not a socially and economically disadvantaged individual, the options, security interests, agreements, etc. held by that person may not significantly impair the socially and economically disadvantaged individual's ownership interest;</text> </paragraph> <paragraph num="(b)"> <text>For a partnership, or limited liability company (LLC), that at least 51 percent of the partnership's or LLC's assets or interests are owned by a socially and economically disadvantaged individual or individuals, and if the ownership interest held by a socially and economically disadvantaged individual is subject to formal or informal restrictions such as options, security interests, agreements, etc. held by a person who is not a socially and economically disadvantaged individual, the options, security interests, agreements, etc. held by that person may not significantly impair the socially and economically disadvantaged individual's ownership interest; and</text> </paragraph> <paragraph num="(c)"> <text>For a corporation, that legal and equitable ownership of at least 51 percent of all voting stock and a cumulative total of at least 51 percent of all class of stock, bonds, or other securities issued by the corporation is owned by socially and economically disadvantaged individuals, and if an ownership interest held by a socially and economically disadvantaged individual is subject to formal or informal restrictions such as options, security interests, agreements, etc. held by a person who is not a socially and economically disadvantaged individual, the options, security interests, agreements, etc. held by that person may not significantly impair the socially and economically disadvantaged individual's ownership interest.</text> </paragraph> </paragraph> <paragraph num="(12)"> <text>Personal Net Worth.</text> <paragraph num="(a)"> <text>“Personal net worth” means the net value of the assets of an individual remaining after total liabilities are deducted.</text> </paragraph> <paragraph num="(b)"> <text>“Personal net worth” includes the individual's share of assets held jointly or as community property with the individual's spouse.</text> </paragraph> <paragraph num="(c)"> <text>“Personal net worth” does not include:</text> <paragraph num="(i)"> <text>An individual's ownership interest in a business applying for certification by the certification agency;</text> </paragraph> <paragraph num="(ii)"> <text>The individual's interest in a certified MBE;</text> </paragraph> <paragraph num="(iii)"> <text>Equity in the individual's primary place of residence; or</text> </paragraph> <paragraph num="(iv)"> <text>Up to $500,000 of the cash value of any qualified retirement savings plans or individual retirement accounts.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(13)"> <text>“Procurement agency” means a principal department or independent unit of the Executive Branch of the State, not otherwise exempted from application of this chapter, that is authorized by law to procure.</text> </paragraph> <paragraph num="(14)"> <text>Race Neutral Methodologies.</text> <paragraph num="(a)"> <text>“Race neutral methodologies” means methodologies that are or can be used to assist all businesses, notwithstanding the social, economic, racial, or sexual composition of those who own or control the business.</text> </paragraph> <paragraph num="(b)"> <text>“Race neutral methodologies” includes:</text> <paragraph num="(i)"> <text>Small business measures under COMAR 21.11.01;</text> </paragraph> <paragraph num="(ii)"> <text>Race neutral measures under Regulation .07 of this chapter; and</text> </paragraph> <paragraph num="(iii)"> <text>An evaluation of each potential contract to determine and, if practicable, abate any impediments to full and open competition with an emphasis on removing impediments that affect small and disadvantaged businesses.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(15)"> <text>Socially Disadvantaged Individual.</text> <paragraph num="(a)"> <text>“Socially disadvantaged individual” means an individual who has been subjected to racial or ethnic prejudice or cultural bias within American society because of membership in a group and without regard to individual qualities.</text> </paragraph> <paragraph num="(b)"> <text>“Socially disadvantaged individual” does not include an individual disadvantaged from circumstances within the control of the individual.</text> </paragraph> </paragraph> <paragraph num="(16)"> <text>Socially and Economically Disadvantaged Individual.</text> <paragraph num="(a)"> <text>“Socially and economically disadvantaged individual” means a citizen or lawfully admitted permanent resident of the United States who is socially disadvantaged and economically disadvantaged.</text> </paragraph> <paragraph num="(b)"> <text>“Socially and economically disadvantaged individual” is rebuttably presumed to include a member of any of the following groups:</text> <paragraph num="(i)"> <text>African American, which includes an individual having origins in any of the black racial groups of Africa;</text> </paragraph> <paragraph num="(ii)"> <text>American Indian/Native American, which includes an individual having origins in any of the original peoples of North America and who is a documented member of a North American Tribe, Band, or otherwise has a special relationship with the United States or a state through treaty, agreement, or some other form of recognition, including an individual who claims to be an American Indian/Native American and who is so regarded by the American Indian/Native American community of which the individual claims to be a part, but not including an individual of Eskimo or Aleutian origin;</text> </paragraph> <paragraph num="(iii)"> <text>Asian, which includes an individual having origins in the Far East, Southeast Asia, or the Indian Subcontinent, and who is so regarded by the community of which the person claims to be a part;</text> </paragraph> <paragraph num="(iv)"> <text>Hispanic, which includes an individual of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race, and who is so regarded by the community of which the person claims to be a part;</text> </paragraph> <paragraph num="(v)"> <text>Physically or mentally disabled, which includes an individual who has an impairment that substantially limits one or more major life activities, who is regarded generally by the community as having such a disability, and whose disability has substantially limited the individual's ability to engage in competitive business;</text> </paragraph> <paragraph num="(vi)"> <text>Women, which includes an individual woman, regardless of race or ethnicity; or</text> </paragraph> <paragraph num="(vii)"> <text>Any other individual found by the certification agency to be socially and economically disadvantaged.</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>“Socially and economically disadvantaged individual” does not include an individual whose personal net worth exceeds $1,500,000, as adjusted annually for inflation by the certification agency according to State Finance and Procurement Article, §14-301, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="(17)"> <text>“Solicitation notice” means public notice of a solicitation for bids, offers, or expressions of interest which contains the nature of the procurement, relevant dates, the availability of solicitation documents, if any, and other pertinent information. The notice may consist of but is not limited to:</text> <paragraph num="(a)"> <text>Legal advertisement;</text> </paragraph> <paragraph num="(b)"> <text>Newspaper notice;</text> </paragraph> <paragraph num="(c)"> <text>Bid board notice;</text> </paragraph> <paragraph num="(d)"> <text>Bid or proposal documents including the invitation for bids or request for proposals; or</text> </paragraph> <paragraph num="(e)"> <text>eMaryland Marketplace notice.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Procurement Agency Responsibility."> <paragraph num="A."> <text>Each procurement agency shall make its procurements in accordance with this chapter.</text> </paragraph> <paragraph num="B."> <text>The Interagency Committee on Public School Construction shall require each local board of education to adopt procedures consistent with this chapter before obtaining State funds for public school construction projects.</text> </paragraph> <paragraph num="C."> <text>When delegating procurement authority to procurement agencies, the Department of General Services shall condition the delegation on compliance with this chapter.</text> </paragraph> <paragraph num="D."> <text>Procurement agencies shall use the forms and affidavits developed by the Governor's Office of Small, Minority & Women Business Affairs, the Board of Public Works, and the Department of Transportation for the certification and reporting procedures required by this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="MBE Liaison Officer."> <text>The head of each procurement agency shall designate an employee to be an MBE liaison officer in the administration of that agency's minority business enterprise program. The MBE liaison officer shall be a high level employee reporting directly to a Secretary, Deputy Secretary, or head of a procurement agency. The MBE liaison officer is responsible for coordinating agency outreach efforts to the minority business community, reviewing agency contracting procedures to ensure compliance with this chapter, assisting in the resolution of contracting issues, and for submitting required MBE program reports or information.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Central Directory."> <paragraph num="A."> <text>The certification agency shall publish and maintain in an electronic format available to the general public through the internet a Central Directory of MBEs it has certified under this chapter. The Central Directory shall specify the type of supplies, services, maintenance, construction, construction-related services, architectural services, or engineering services primarily provided by the MBE, and the date of certification. It shall include the address, phone number, and contact person for the MBE, and MBE classifications of each certified business.</text> </paragraph> <paragraph num="B."> <text>The Central Directory shall include all contract information available to the certification agency for the MBE except when disclosure is prohibited by State Government Article, Title 10, Subtitle 6, Part III, Annotated Code of Maryland, the certification number of the MBE, and contact information for up to three professional references for the MBE.</text> </paragraph> <paragraph num="C."> <text>The Central Directory may include other information the certification agency considers necessary or appropriate to encourage participation in the procurement process by MBEs.</text> </paragraph> <paragraph num="D."> <text>The Central Directory shall:</text> <paragraph num="(1)"> <text>Be updated at least monthly;</text> </paragraph> <paragraph num="(2)"> <text>Identify the date of certification for each MBE that has obtained certification during the calendar year; and</text> </paragraph> <paragraph num="(3)"> <text>Include a list of all MBEs that have become ineligible to participate in the MBE Program because:</text> <paragraph num="(a)"> <text>One or more of its owners has a personal net worth exceeding the amount defined under Regulation .03B(11) of this chapter; or</text> </paragraph> <paragraph num="(b)"> <text>The MBE no longer meets the small business size standards, as defined under Regulation .15 of this chapter.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>The certification agency may include in the Central Directory a listing of “community service providers”, as that term is defined under COMAR 21.11.05.01B(2).</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Race Neutral Measures."> <text>Race neutral measures may include:</text> <paragraph num="A."> <text>Any outreach efforts to advise small and minority businesses of contracting opportunities within the State in accordance with §§B—D of this regulation;</text> </paragraph> <paragraph num="B."> <text>Procurement agencies periodically conducting meetings with minority business enterprises and other small businesses, as appropriate, to advise of procurement opportunities within that procurement agency, which shall be coordinated with the Governor's Office of Small, Minority & Women Business Affairs and other State agencies that make similar procurements;</text> </paragraph> <paragraph num="C."> <text>The Governor's Office of Small, Minority & Women Business Affairs periodically convening seminars that include MBEs and small businesses, and appropriate personnel of the various procurement agencies, which shall include topics of interest to prospective or current MBEs and small businesses such as State procurement procedures, certification, and anticipated State procurements, and may include technical assistance to MBEs and small businesses relating to the procurement process from the Office of Minority Affairs;</text> </paragraph> <paragraph num="D."> <text>The Governor's Office of Small, Minority & Women Business Affairs providing notice of all seminars and meetings undertaken under the regulation to each MBE listed in the Central Directory or identified under COMAR 21.05.07.06 and each small business listed in the Department of General Services small business vendor lists that may be reasonably expected to be interested in the effort, as well as to those entities described in Regulation .09D of this chapter;</text> </paragraph> <paragraph num="E."> <text>Small business procurements, including price preferences, the Small Business Reserve under COMAR 21.11.01, and veteran-owned small business enterprises under COMAR 21.11.14;</text> </paragraph> <paragraph num="F."> <text>Use of evaluation factors that do not unreasonably hinder participation by small businesses, including potential use of the economic benefits evaluation factor under COMAR 21.05.03.03(A)(3);</text> </paragraph> <paragraph num="G."> <text>Technical Assistance and Business Development programs; and</text> </paragraph> <paragraph num="H."> <text>Removal or relaxation of unreasonably restrictive or prohibitive solicitation or contract requirements or both.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="MBE Notification."> <text>Within 30 days following the first day of the fiscal year, each procurement agency shall forward to the Governor's Office of Small, Minority & Women Business Affairs a complete listing of all known regularly recurring procurement solicitations reasonably expected to be of $100,000 or more. The list shall be in an electronic format and include the subject of the contract, where the work is to be performed or delivery made, the approximate solicitation date, and the contact information of the procurement officer. The Office of Minority Affairs shall compile a master list containing this information.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Procurement Solicitations."> <paragraph num="A."> <text>To attain the overall and specific MBE goals under Regulation .01C of this chapter, procurement agencies shall set, where appropriate, an overall certified MBE participation goal, expressed as a percentage of the dollar value of the contract, and subgoals to facilitate the participation of certain groups as prescribed under Regulation .01C(2) of this chapter, unless:</text> <paragraph num="(1)"> <text>The procurement is a construction contract having an estimated value of less than $50,000; or</text> </paragraph> <paragraph num="(2)"> <text>The contract has been designated as a procurement to be made without any certified MBE participation goals.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Goal Setting Generally.</text> <paragraph num="(1)"> <text>A procurement agency shall assess the potential for certified MBE prime contractor and subcontractor participation in each contract, and estimate the amount of participation if any before initiating the procurement. The procurement agency shall use the MBE strategies decided most appropriate for the particular contract.</text> </paragraph> <paragraph num="(2)"> <text>A procurement agency shall consider the practical severability of all contracts and, in accordance with COMAR 21.05.01.08, may not bundle contracts for the purpose of precluding or limiting participation by MBEs or small businesses.</text> </paragraph> <paragraph num="(3)"> <text>The following factors may be used to anticipate the degree of certified MBE prime contractor participation, to decide the certified MBE participation goal and subgoals, when used, and the MBE prime contractor and subcontractor procurement strategy to be used:</text> <paragraph num="(a)"> <text>The extent to which direct solicitation at the prime contract level, subcontracting, or a combination of both is determined most likely to result in maximum certified MBE participation in the contract;</text> </paragraph> <paragraph num="(b)"> <text>The number of certified MBEs listed in the Central Directory or otherwise identified for a particular supply, service, maintenance, construction, construction-related service, architectural service, or engineering service;</text> </paragraph> <paragraph num="(c)"> <text>The geographical proximity, when relevant, of certified MBEs identified under §A(2)(b) of this regulation to the location of the work to be performed;</text> </paragraph> <paragraph num="(d)"> <text>The feasibility of subcontracting opportunities given the nature and extent of the proposed contract; and</text> </paragraph> <paragraph num="(e)"> <text>The guidelines established by the Governor’s Office of Small, Minority & Women Business Affairs for determining the subgoals to be set for the groups listed in State Finance and Procurement Article, §14-301(k)(1)(i)1—4 and 6, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>Procurement agencies may not use quotas.</text> </paragraph> <paragraph num="(5)"> <text>Procurement agencies may not use any project goal-setting process that:</text> <paragraph num="(a)"> <text>Solely relies on the State’s overall percentage goal, or any other jurisdiction’s overall percentage goal; or</text> </paragraph> <paragraph num="(b)"> <text>Fails to incorporate an analysis of:</text> <paragraph num="(i)"> <text>The potential subcontract opportunities available in the prime procurement contract;</text> </paragraph> <paragraph num="(ii)"> <text>The availability of certified MBEs to respond competitively to the potential subcontract opportunities;</text> </paragraph> <paragraph num="(iii)"> <text>Guidelines established by the Office of Minority Affairs; and</text> </paragraph> <paragraph num="(iv)"> <text>Other factors that contribute to Constitutional goal setting.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>MBE Subcontracting Provisions.</text> <paragraph num="(1)"> <text>Any contract may contain certified MBE subcontract participation goals, expressed as a percentage of the dollar value of the contract, that the contractor shall attempt to subcontract to certified MBEs.</text> </paragraph> <paragraph num="(2)"> <text>Solicitation Content. Each solicitation identified by a procurement agency as having subcontract opportunities shall contain the clauses required by COMAR 21.05.08.03 and .04. The solicitation shall include a summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries. The solicitation shall also contain provisions requiring bidders or offerors including those bidders or offerors that are certified MBEs to:</text> <paragraph num="(a)"> <text>Identify specific work categories within the scope of the procurement appropriate for subcontracting;</text> </paragraph> <paragraph num="(b)"> <text>Solicit certified MBEs in writing at least 10 days before bids or proposals are due, describing the identified work categories and providing instructions on how to bid on the subcontracts;</text> </paragraph> <paragraph num="(c)"> <text>Attempt to make personal contact with the certified MBEs solicited and to document these attempts;</text> </paragraph> <paragraph num="(d)"> <text>Assist certified MBEs to fulfill, or to seek waiver of, bonding requirements; and</text> </paragraph> <paragraph num="(e)"> <text>Attend prebid or other meetings the procurement agency schedules to publicize contracting opportunities to certified MBEs.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>On forms provided by the procurement agency, a bidder or offeror shall submit with its bid or proposal:</text> <paragraph num="(a)"> <text>A completed MBE utilization and fair solicitation affidavit including either an agreement to meet the certified MBE participation goal or a request for a full or partial waiver; and</text> </paragraph> <paragraph num="(b)"> <text>A completed MBE participation schedule that identifies the certified minority businesses that the bidder or offeror agrees to utilize in the performance of the contract and the percentage of contract value attributed to each MBE.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>The MBE participation schedule shall:</text> <paragraph num="(a)"> <text>Include the name of each certified MBE that will participate in the project including the certification category under which the MBE is participating; and</text> </paragraph> <paragraph num="(b)"> <text>Include the percentage of the contract to be paid to each MBE for the work or supply.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>The failure of a bidder to accurately complete and submit the MBE utilization affidavit and the MBE participation schedule shall result in a determination that the bid is not responsive unless the inaccuracy is determined to be the result of a minor irregularity that is waived or cured in accordance with COMAR 21.06.02.04.</text> </paragraph> <paragraph num="(6)"> <text>The failure of an offeror to accurately complete and submit the MBE utilization affidavit and the MBE participation schedule shall result in a determination that the proposal is not reasonably susceptible of being selected for award unless the inaccuracy is determined to be the result of a minor irregularity that is waived or cured in accordance with COMAR 21.06.02.04.</text> </paragraph> <paragraph num="(7)"> <text>The names of prime contractors requesting or purchasing solicitation documents for construction contracts shall be made available on request to any certified MBEs whose specialty suggests an interest in subcontracting.</text> </paragraph> <paragraph num="(8)"> <text>Each prime contractor given solicitation documents as part of a procurement shall be given the web address for the electronic version of the MBE directory for purposes of soliciting subcontract quotations, bids, or offers from certified MBEs.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Direct Solicitation. As part of the solicitation process being employed for the business community in general, and in addition to the public notice requirements of COMAR 21.05.02.04 and 21.05.03.02B, a procurement agency shall send a copy of the solicitation or notice of the solicitation, or both, to a sufficient number of certified MBEs listed in the central directory as is likely to result in certified MBE responses to the solicitation.</text> </paragraph> <paragraph num="E."> <text>Notification — Organizations and Trade Groups. Except for sole source, small, and emergency procurements, a copy of the solicitation notice for each procurement may be sent in an electronic format to the Office of Minority Affairs for distribution to the appropriate minority business associations, minority business assistance agencies, and trade organizations identified by the Office of Minority Affairs.</text> </paragraph> <paragraph num="F."> <text>Prebid and Preproposal Conferences. When prebid or preproposal conferences are held, the procurement agency shall explain the certified MBE subcontracting goal if applicable, the MBE provisions of the solicitation, the documentation required, and its relationship to the determinations that will be made in connection with the evaluation process.</text> </paragraph> <paragraph num="G."> <text>Federal Requirements. To the extent required by federal assistance instruments applicable to contracts let by the State under a federal assistance program, only those MBEs meeting federal requirements and criteria shall be used.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Contract Award."> <paragraph num="A."> <text>General.</text> <paragraph num="(1)"> <text>In the event of tie bids, or of offers in which the evaluation of technical and price proposals is essentially equal, a procurement agency may award the contract, in accordance with COMAR 21.05.02.14 or 21.05.03.03F, as applicable, in order to obtain certified MBE participation.</text> </paragraph> <paragraph num="(2)"> <text>In exercising its delegation or control authority over contracts, the Department of General Services may require all determinations under this regulation and Regulation .11 of this chapter to be made before execution of a contract, or approval by the control agency, or both.</text> </paragraph> <paragraph num="(3)"> <text>Accomplishment of Goal. A prime contractor, including a joint venture, shall accomplish an amount of work not less than the MBE subcontract goal with certified MBE subcontractors.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Additional Documentation.</text> <paragraph num="(1)"> <text>The documentation in §B(2)—(4) of this regulation is considered as part of the contract, and shall be furnished by the apparent successful bidder or offeror to the procurement officer within 10 working days from notification of apparent award. If the documentation is not furnished within the specified time, the bidder or offeror may be rejected as nonresponsible. No contract award may be made until the documentation is provided to and reviewed by the procuring agency.</text> </paragraph> <paragraph num="(2)"> <text>An MBE subcontractor project participation statement shall be furnished, signed by the bidder or offeror and each MBE listed in the MBE participation schedule, which includes:</text> <paragraph num="(a)"> <text>A statement of intent to enter into a subcontract agreement between the apparent successful bidder or offeror and each proposed MBE subcontractor at the time the State contract is awarded to the apparent successful bidder or offeror;</text> </paragraph> <paragraph num="(b)"> <text>A copy of each subcontract agreement between the apparent successful bidder or offeror and each proposed MBE subcontractor, that the apparent successful bidder or offeror and each proposed MBE subcontractor intend to enter into contingent upon the State’s contract award to the apparent successful bidder or offeror, containing all necessary terms, including pricing, required for the MBE to perform its proposed work and for the apparent successful bidder or offeror to pay the MBE for its work during the contract term; and</text> </paragraph> <paragraph num="(c)"> <text>The amount and type of bonds required of MBE subcontractors, if any.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Each MBE proposed as a subcontractor on the recommended contract award shall complete a document stating the percentage and type of work assigned to the proposed MBE subcontractor under the recommended contract award and submit copies of the completed form to both the procurement officer and the apparent successful bidder or offeror.</text> </paragraph> <paragraph num="(4)"> <text>An affidavit shall be completed and signed by the apparent successful bidder or offeror stating that, in the solicitation of subcontract quotations or offers, MBE subcontractors were provided not less than the same information and amount of time to respond as were non-MBE subcontractors. With this affidavit, the apparent successful bidder or offeror shall provide to the procuring agency a list of MBEs with whom the apparent successful bidder or offeror negotiated, including price quotes from minority and nonminority firms.</text> </paragraph> <paragraph num="(5)"> <text>Other documentation considered appropriate by the procurement agency to ascertain bidder or offeror responsibility in connection with the contract MBE participation goal shall be furnished by the bidder or offeror.</text> </paragraph> <paragraph num="(6)"> <text>The procuring agency shall review the documentation submitted under §B(2)—(5) of this regulation and confirm in writing that the submitted documents meet the requirements of this regulation, including verifying that all MBE subcontract agreements contain necessary terms, prior to any State contract award with MBE subcontractor participation.</text> </paragraph> <paragraph num="(7)"> <text>Any MBE utilization affidavit or MBE participation schedule submitted by an apparent successful bidder or offeror that does not include a commitment to achieve the contract goal and any subgoals for MBE participation is an implied request for a full or partial waiver of the remainder of the contract goal or subgoals, as applicable, and the apparent successful bidder or offeror shall submit documentation supporting that waiver request as provided in Regulation .11 of this chapter.</text> </paragraph> <paragraph num="(8)"> <text>The contractor, by submitting the bid or offer, consents to provide that documentation requested by the designated department or procurement agency pursuant to COMAR 21.11.03.13, and to provide right of entry at any reasonable time for purposes of the State's representatives verifying compliance with the MBE subcontractor requirements.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Contracts Involving MBE Subcontracts.</text> <paragraph num="(1)"> <text>A contract involving MBE subcontracts is subject to the procurement agency's concluding that the apparent successful bidder or offeror meets the applicable certified MBE participation provisions contained in the solicitation, law, and regulations.</text> </paragraph> <paragraph num="(2)"> <text>Upon review of the documentation submitted under §B of this regulation, the procurement agency shall make a finding whether the apparent successful bidder or offeror has complied in good faith with the outreach efforts required under Regulation .09C(2)(a)—(e) of this chapter. If the procurement agency finds that the apparent successful bidder or offeror has not complied in good faith, the agency may require the apparent successful bidder or offeror to renegotiate any MBE subcontract agreement with a proposed MBE to attempt to meet compliance, without altering the MBE’s proposed participation included in the MBE utilization affidavit or MBE participation schedule. Any renegotiated MBE subcontract agreement shall be reviewed and approved by the procurement agency for compliance prior to any State contract award to the apparent successful bidder or offeror. If the procurement agency finds that the apparent successful bidder or offeror has complied in good faith, the agency may not require the the apparent successful bidder or offeror to renegotiate any subcontract in order to achieve a different result.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Solicitation documents completed and submitted by the bidder or offeror in connection with its certified MBE participation commitment shall be made part of the procurement contract.</text> </paragraph> <paragraph num="E."> <text>All contracts containing certified MBE participation goals shall contain a liquidated damages provision that applies if the contractor fails to comply in good faith with the provisions of State MBE laws or the pertinent terms of the procurement contract and a provision that prohibits a unit from assessing liquidated damages for an indefinite delivery contract or an indefinite performance contract if a unit fails to request the performance or delivery of a task for which an MBE subcontractor was:</text> <paragraph num="(1)"> <text>Named on the MBE Participation Schedule; or</text> </paragraph> <paragraph num="(2)"> <text>Named on the MBE Participation Schedule and qualified based on the subcontractor’s existing North American Industry Classification System Code.</text> </paragraph> </paragraph> <paragraph num="F."> <text>If a procurement agency determines that the apparent successful bidder or offeror has not complied with the certified MBE subcontract participation contract goal, and has not obtained a waiver in accordance with Regulation .11 of this chapter, or if the bidder or offeror fails to submit the documentation required by the solicitation, or fails to comply in good faith with the outreach efforts required under Regulation .09C(2)(a)(e) of this chapter, the procurement officer, upon review by the Office of the Attorney General and approval of the agency head having jurisdiction over the contract, may reject the bid or offer or cancel the award of the contract. The reasons for this action shall be specified in writing and mailed or delivered to the bidder or offeror.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Waiver."> <paragraph num="A."> <text>If, for any reason, the apparent successful bidder or offeror is unable to achieve the contract goal for each certified MBE classification specified as having a subcontract goal or the overall MBE contract goal, the bidder or offeror shall submit the following documentation in support of a waiver request:</text> <paragraph num="(1)"> <text>A detailed statement of the efforts made to select portions of the work proposed to be performed by certified MBEs, including the work to be performed by each MBE classification if an MBE subgoal has been specified, in order to increase the likelihood of achieving the stated goal;</text> </paragraph> <paragraph num="(2)"> <text>A detailed statement of the efforts made to contact and negotiate with certified MBEs, and if appropriate, by certified MBE classification, including:</text> <paragraph num="(a)"> <text>The names, addresses, dates, telephone numbers, and classification of certified MBEs contacted, and</text> </paragraph> <paragraph num="(b)"> <text>A description of the information provided to certified MBEs regarding the plans, specifications, and anticipated time schedule for portions of the work to be performed;</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>As to each certified MBE that placed a subcontract quotation or offer that the apparent successful bidder or offeror considers not to be acceptable, a detailed statement of the reasons for this conclusion;</text> </paragraph> <paragraph num="(4)"> <text>A list of certified MBEs including, if applicable, certified MBEs in each MBE classification, found to be unavailable, which shall be accompanied by an MBE unavailability verification form signed by the certified MBE, or a statement from the apparent successful bidder or offeror that the certified MBE refused to give the written verification;</text> </paragraph> <paragraph num="(5)"> <text>The record of the apparent successful bidder's or offeror's compliance with the outreach efforts required under Regulation .09C(2)(a)—(e) of this chapter; and</text> </paragraph> <paragraph num="(6)"> <text>If the request for a waiver is for a certain MBE classification within an overall MBE goal, the bidder or offeror shall demonstrate reasonable efforts to meet the overall MBE goal with other MBE classification or classifications.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A waiver of a certified MBE contract goal may be granted only upon a reasonable demonstration by the bidder or offeror that certified MBE subcontract participation was unable to be obtained, or was unable to be obtained at a reasonable price or in the appropriate MBE classifications, and if the agency head or designee determines that the public interest is served by a waiver. In making a determination under this section, the agency head or designee may consider engineering estimates, catalogue prices, general market availability, and availability of certified MBEs in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between certified MBE and non-MBE cost of participation, and their impact on the overall cost of the contract to the State and any other relevant factor.</text> </paragraph> <paragraph num="C."> <text>An agency head may waive any of the provisions of Regulations .09—.10 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures.</text> </paragraph> <paragraph num="D."> <text>When a waiver is granted, except waivers under §C of this regulation, one copy of the waiver determination and the reasons for the determination shall be kept by the MBE liaison officer with another copy forwarded to the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> <paragraph num="E."> <text>Not later than July 31 of each year, each procurement agency shall submit directly to the Board of Public Works and the Governor's Office of Small, Minority & Women Business Affairs an Annual Report of Waivers Requested and Waivers Granted under this regulation.</text> </paragraph> <paragraph num="F."> <text>The report required under §E of this regulation shall contain the following information on those contracts where Minority Business Enterprise goals, or subgoals, are present and one or more waiver requests have been submitted:</text> <paragraph num="(1)"> <text>The contract titles, numbers, and dates;</text> </paragraph> <paragraph num="(2)"> <text>The number of waiver requests received;</text> </paragraph> <paragraph num="(3)"> <text>The number of waiver requests granted; and</text> </paragraph> <paragraph num="(4)"> <text>Any other information specifically requested by the Board.</text> </paragraph> </paragraph> <paragraph num="G."> <text>The Board shall:</text> <paragraph num="(1)"> <text>Retain a copy of the Annual Report of Waivers Requested and Waivers Granted for each agency; and</text> </paragraph> <paragraph num="(2)"> <text>Forward a copy to the General Assembly, the Governor's Office of Small, Minority & Women Business Affairs, and each control agency, before October 1 of each year.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".12" heading="Amendment of MBE Participation Schedule."> <paragraph num="A."> <text>If at any time after submission of a bid or proposal and before execution of a contract, a bidder or offeror determines that a certified MBE listed on the MBE participation schedule required under Regulation .09C(3) of this chapter has become or will become unavailable or ineligible to perform the work required under the contract, then the bidder or offeror:</text> <paragraph num="(1)"> <text>Within 72 hours of making the determination, shall provide written notice to the procurement officer; and</text> </paragraph> <paragraph num="(2)"> <text>Within 5 business days of making the determination, may make a written request to the procurement officer to amend the MBE participation schedule.</text> </paragraph> </paragraph> <paragraph num="B."> <text>For purposes of this regulation, “ineligible” means an MBE certified by the certification agency that may not be counted toward meeting the MBE subcontract participation goal established for the procurement because:</text> <paragraph num="(1)"> <text>The MBE is not certified by the certification agency to provide the services, materials, or supplies the bidder or offeror has committed the MBE to provide on the MBE participation schedule;</text> </paragraph> <paragraph num="(2)"> <text>The MBE has graduated from the NAICS Code associated with the services, materials, or supplies the bidder or offeror has designated the MBE to provide; or</text> </paragraph> <paragraph num="(3)"> <text>The MBE no longer meets the personal net worth requirements of Regulation .03 of this chapter.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The request to amend the MBE participation schedule shall include:</text> <paragraph num="(1)"> <text>An explanation of the reason for inclusion of the unavailable or ineligible firm on the original MBE participation schedule;</text> </paragraph> <paragraph num="(2)"> <text>The name of each certified MBE subcontractor that will substitute for the unavailable or ineligible certified MBE subcontractor;</text> </paragraph> <paragraph num="(3)"> <text>A description of work to be performed by each certified MBE subcontractor;</text> </paragraph> <paragraph num="(4)"> <text>The percentage of the contract to be paid to the certified MBE subcontractor for the work or supply; and</text> </paragraph> <paragraph num="(5)"> <text>A full description of the bidder’s or offeror’s efforts to substitute another certified MBE subcontractor to perform the work that the unavailable or ineligible certified MBE subcontractor would have performed.</text> </paragraph> </paragraph> <paragraph num="D."> <text>The procurement officer shall consult with the MBE liaison before deciding whether to approve a request to amend the MBE participation schedule.</text> </paragraph> <paragraph num="E."> <text>Amendments to the MBE participation schedule occurring after the date of contract award.</text> <paragraph num="(1)"> <text>For purposes of this regulation, “good cause” includes documented nonperformance by the certified MBE or election by the certified MBE to cease work on the contract. Failure of the certified MBE to provide a bond as requested by the contractor is not considered to be nonperformance by the certified MBE if the requested bond violates State Finance and Procurement Article, §13-227, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(2)"> <text>A contractor may not terminate or otherwise cancel the contract of a certified MBE listed on the MBE participation schedule without:</text> <paragraph num="(a)"> <text>Showing good cause why the contract with the certified MBE should be terminated or cancelled;</text> </paragraph> <paragraph num="(b)"> <text>Obtaining the prior written consent of the MBE liaison;</text> </paragraph> <paragraph num="(c)"> <text>Obtaining approval of the head of the unit; and</text> </paragraph> <paragraph num="(d)"> <text>Subsequently amending the contract.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The procurement agency shall send a copy of the MBE liaison written consent to the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".12-1" heading="Counting Minority Business Enterprise Participation."> <paragraph num="A."> <text>General. When a certified MBE participates in a contract, the procurement agency shall consider §§B, C, D, and E of this regulation in determining whether and the extent to which the certified MBE’s participation may be counted toward the MBE participation goals.</text> </paragraph> <paragraph num="B."> <text>Commercially Useful Function. A procurement agency may count participation of a certified MBE contractor toward MBE goals only if the certified MBE is performing a commercially useful function on that contract.</text> <paragraph num="(1)"> <text>Commercially Useful Function.</text> <paragraph num="(a)"> <text>A certified MBE performs a commercially useful function when it is responsible:</text> <paragraph num="(i)"> <text>For execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved; and</text> </paragraph> <paragraph num="(ii)"> <text>With respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>To determine whether a certified MBE is performing a commercially useful function, the procurement agency shall evaluate:</text> <paragraph num="(i)"> <text>The amount of work subcontracted;</text> </paragraph> <paragraph num="(ii)"> <text>Industry practices;</text> </paragraph> <paragraph num="(iii)"> <text>Whether the amount the certified MBE is to be paid under the contract is commensurate with the work it is actually performing; and</text> </paragraph> <paragraph num="(iv)"> <text>Other relevant factors.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(2)"> <text>A certified MBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of MBE participation. In deciding whether a certified MBE is such an extra participant, the procurement agency may examine similar transactions, particularly those in which MBEs do not participate.</text> </paragraph> <paragraph num="(3)"> <text>A certified MBE is presumed not to perform a commercially useful function if it does not perform or exercise responsibility for at least 30 percent of the total dollar value of its contract with its own work force, or the certified MBE subcontracts a greater portion of the work of a contract than would be expected on the basis of industry practice for the type of work involved. A procurement agency may, however, upon evaluation of the work involved and industry practices, decide that the certified MBE is performing a commercially useful function.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Joint Venture. When a certified MBE performs as a participant in a joint venture, a procurement agency may count, subject to §D of this regulation, a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the certified MBE performs with its own forces toward fulfilling the contract goal and not more than one of the contract subgoals, if any.</text> </paragraph> <paragraph num="D."> <text>Counting Participation of Certified MBE Prime.</text> <paragraph num="(1)"> <text>This section shall apply to contracts that are solicited and awarded on or after June 9, 2014.</text> </paragraph> <paragraph num="(2)"> <text>Subject to the requirements of §B of this regulation and Regulation .09C of this chapter, when a certified MBE participates as a prime contractor on a contract, a procurement agency may count the distinct, clearly defined portion of the work of the contract that the certified MBE performs with its own forces toward fulfilling up to 50 percent of the MBE participation goal and up to 100 percent of not more than one of the MBE participation subgoals, if any, established for the contract, provided that the certified MBE prime contractor is:</text> <paragraph num="(a)"> <text>Identified on the MBE participation schedule pursuant to Regulation .09C(3)(b) of this chapter, including the certification category under which the MBE prime is self-performing and the percentage of the contract value attributed to that work; and</text> </paragraph> <paragraph num="(b)"> <text>Certified by the certification agency to provide the services, materials, or supplies that it has committed itself to self-perform on the MBE participation schedule.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Counting Value of Supplies and Equipment.</text> <paragraph num="(1)"> <text>For purposes of this section, “regular dealer” means:</text> <paragraph num="(a)"> <text>A firm that owns, operates, or maintains a store, a warehouse, or any other establishment in which the materials, supplies, articles, or equipment are of the general character described by the specifications required under the contract and are bought, kept in stock, or regularly sold or leased to the public in the usual course of business; and</text> </paragraph> <paragraph num="(b)"> <text>Does not include a packager, a broker, a manufacturer’s representative, or any other person that arranges or expedites transactions.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If the certified MBE is a regular dealer, then a procurement unit may apply only 60 percent of the costs of the materials and supplies provided by the regular dealer toward the MBE participation goal.</text> </paragraph> <paragraph num="(3)"> <text>If the certified MBE is neither a regular dealer nor a manufacturer, a procurement unit:</text> <paragraph num="(a)"> <text>May not count any portion of the costs of the materials and supplies toward the MBE participation goal; and</text> </paragraph> <paragraph num="(b)"> <text>May count the entire amount of the fees or commissions charged for assistance in procuring materials and supplies, fees, or transportation charges for delivering the materials and supplies required on a procurement toward the MBE participation goal if the procurement unit determines the fees:</text> <paragraph num="(i)"> <text>Are reasonable; and</text> </paragraph> <paragraph num="(ii)"> <text>Not excessive as compared with fees customarily allowed for similar services.</text> </paragraph> </paragraph> </paragraph> </paragraph> <paragraph num="F."> <text>Counting Participation of a Certified Business Owned by a Woman of an Ethnic or Racial Group. A certified MBE may be counted as a woman-owned business, a business owned by a member of an ethnic group or racial group, or both, if the business has been certified in both categories.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".13" heading="Compliance."> <paragraph num="A."> <text>To ensure compliance with certified MBE participation goals, the procurement agency shall:</text> <paragraph num="(1)"> <text>Verify that the certified MBEs listed in the MBE participation schedule are actually performing work and receiving compensation as set forth in the participation schedule; and</text> </paragraph> <paragraph num="(2)"> <text>Monitor and collect data on contractor compliance with contract MBE participation goals.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The contractor shall:</text> <paragraph num="(1)"> <text>Permit the procurement agency to inspect any relevant matter, including records and the jobsite and to interview subcontractors and workers;</text> </paragraph> <paragraph num="(2)"> <text>If performing a State construction contract, ensure that all subcontractors are paid any undisputed amount to which the subcontractor is entitled within 10 calendar days of receiving a progress or final payment from the State and otherwise comply with COMAR 21.10.08 which sets forth the obligations of the prime contractor, contractors, and subcontractors and the remedies for delinquency or nonpayment of undisputed amounts, in State construction contracts.</text> </paragraph> <paragraph num="(3)"> <text>Submit monthly to the procurement agency a report listing payments made to each MBE subcontractor in the preceding 30 days and any unpaid invoices over 30 days old received from a certified MBE subcontractor, and the reason payment has not been made; and</text> </paragraph> <paragraph num="(4)"> <text>Include in its agreements with its certified MBE subcontractors a requirement that the certified MBE subcontractors submit monthly to the procurement agency a report identifying the prime contract, and listing:</text> <paragraph num="(a)"> <text>Payments received from the contractor in the preceding 30 days, and</text> </paragraph> <paragraph num="(b)"> <text>Invoices for which the subcontractor has not been paid.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Upon determining that a contractor did not make good faith efforts to comply with contract MBE participation goals, the procurement agency shall notify the contractor in writing of its findings and shall specify what corrective actions are required. The contractor is required to initiate the corrective actions within 10 days and complete them within the time specified by the procurement agency.</text> </paragraph> <paragraph num="D."> <text>If a procurement agency determines that material noncompliance with MBE contract provisions exists and that the prime contractor refuses or fails to take the corrective action required by the procurement agency, then the following sanctions may be invoked:</text> <paragraph num="(1)"> <text>Termination of the contract;</text> </paragraph> <paragraph num="(2)"> <text>Referral to the Office of the Attorney General for appropriate action; or</text> </paragraph> <paragraph num="(3)"> <text>Initiation of any other specific remedy identified by contract.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Upon completion of the project, the procurement agency shall:</text> <paragraph num="(1)"> <text>Prepare a report that compares the dollar value of the payments actually received by MBEs with the dollar value of the amount that MBEs were intended to have received under the contract's MBE participation goal; and</text> </paragraph> <paragraph num="(2)"> <text>Include in the report an explanation of any discrepancy.</text> </paragraph> </paragraph> <paragraph num="F."> <text>A procurement agency may use any other compliance mechanism authorized by contract or this title.</text> </paragraph> <paragraph num="G."> <text>A procurement agency may, upon completion of a contract, and before final payment or release of retainage or both, require that a prime contractor on any contract having an MBE subcontract goal, submit a final report, in affidavit form and under penalty of perjury, of all payments made to, or withheld from, MBE subcontractors. The solicitation shall contain notice of this provision.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".14" heading="Repealed." /> <regulation prefix="Regulation" num=".15" heading="Certification — General."> <paragraph num="A."> <text>The Department of Transportation is the agency designated to certify, recertify, and decertify MBEs. A procurement agency may not permit a person to participate in a procurement as a certified MBE unless the Department of Transportation has certified the person as a minority business enterprise.</text> </paragraph> <paragraph num="B."> <text>Procedure.</text> <paragraph num="(1)"> <text>Contractors seeking MBE certification shall apply to the Department of Transportation. Certification procedures, including procedures for recertification and decertification, are those set forth in COMAR 11.01.10.01, which incorporates by reference the Department of Transportation “Minority Business Enterprise Program”.</text> </paragraph> <paragraph num="(2)"> <text>Graduation.</text> <paragraph num="(a)"> <text>If a certified MBE meets or exceeds the small business size standards specified in 13 CFR Part 121, as amended, which is incorporated by reference, the MBE is no longer eligible to participate in a procurement as a certified MBE. The MBE is still eligible for credit towards an MBE goal under a contract entered into when the MBE was eligible and certified. Ineligibility of an MBE to participate in the MBE program may not be the sole cause of the termination of the MBE contractual relationship for the remainder of the term of the contract.</text> </paragraph> <paragraph num="(b)"> <text>If, during the next 3 years, the MBE again becomes qualified under the small business size standards specified in 13 CFR Part 121, as amended, which is incorporated by reference, the MBE may resume participation as a certified MBE through the recertification process.</text> </paragraph> <paragraph num="(c)"> <text>If, after 3 years of nonparticipation, the MBE continues to meet or exceed the small business size standards under 13 CFR Part 121, as amended, which is incorporated by reference, the MBE is considered to have graduated and will no longer be certified.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Information Which May Be Requested. The Department of Transportation may request the following information to assist in any certification, recertification, decertification, participation, or graduation determination. Failure to furnish the requested information within a reasonable time as specified in writing may result in an administrative closing of an application, a denial of certification or recertification, or a determination to decertify. The information consists of:</text> <paragraph num="(1)"> <text>Copies of articles of incorporation, bylaws, minutes, shareholder agreements, stock certificates, stock transfer ledgers, any additional profit-sharing agreements or buyout rights, or in the case of a partnership, the partnership agreement;</text> </paragraph> <paragraph num="(2)"> <text>Current financial statements, business licenses, federal personal income tax returns for the most current 2 years, including all schedules, federal business tax returns for the past 3 years, including all schedules, cancelled checks, resumes of principal parties, and any relevant personal and third-party agreements, such as rental and management agreements;</text> </paragraph> <paragraph num="(3)"> <text>Documentation of certifications received from other public entities including “on-site certification review reports”; and</text> </paragraph> <paragraph num="(4)"> <text>Other information the Department of Transportation determines is necessary.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A business that has received certification from a federal or county MBE program that uses a certification process substantially similar to the process established in this regulation shall be eligible for certification by the Department of Transportation as a State-certified MBE if the business:</text> <paragraph num="(1)"> <text>Has obtained certification under the Federal Disadvantaged Business Enterprise Program; and</text> </paragraph> <paragraph num="(2)"> <text>Meets the eligibility requirements of the State Minority Business Enterprise Program.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".16" heading="Minority Business Enterprise Advisory Committee. — Repealed." /> <regulation prefix="Regulation" num=".17" heading="Reporting."> <paragraph num="A."> <text>Each procurement agency shall make a report annually within 90 days following the close of the fiscal year to the Governor’s Office of Small, Minority & Women Business Affairs, the Department of Transportation, and, subject to State Government Article, §2-1257, Annotated Code of Maryland, to the Joint Committee on Fair Practices and State Personnel Oversight that includes for the preceding fiscal year:</text> <paragraph num="(1)"> <text>The total number and value of procurement contracts between the procurement agency and certified MBEs, by specific MBE category and by industry type, including whether the MBE participated as a prime contractor or as a subcontractor;</text> </paragraph> <paragraph num="(2)"> <text>The percentage that those procurement contracts represent, by specific MBE category and by industry type, of the total number and value of procurement contracts;</text> </paragraph> <paragraph num="(3)"> <text>The total number and the names of certified MBEs that participated as prime contractors or as subcontractors on procurement contracts awarded by a unit;</text> </paragraph> <paragraph num="(4)"> <text>For each MBE included in the report under §A(3) of this regulation, a list of all procurement contracts awarded by the procurement agency to that MBE, including a description of the contract and industry type;</text> </paragraph> <paragraph num="(5)"> <text>The results of each compliance assessment conducted by the procurement agency under Regulation .13 of this chapter, including for each contract completed during the fiscal year:</text> <paragraph num="(a)"> <text>The names of each prime contractor and each subcontractor that participated in the contract;</text> </paragraph> <paragraph num="(b)"> <text>The type of good or service provided by the contract;</text> </paragraph> <paragraph num="(c)"> <text>The MBE participation goal for the contract;</text> </paragraph> <paragraph num="(d)"> <text>Whether a waiver was granted for the MBE participation goal;</text> </paragraph> <paragraph num="(e)"> <text>The total dollar value of payments made to each prime contractor and by each prime contractor to each subcontractor during the contract term;</text> </paragraph> <paragraph num="(f)"> <text>Whether each subcontractor is a certified MBE; and</text> </paragraph> <paragraph num="(g)"> <text>If applicable, a description of factors that may have contributed to failure to achieve the MBE participation goal for the contract, including documented nonperformance or unavailability of a MBE;</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>The number of waivers granted pursuant to Regulation .11 of this chapter; and</text> </paragraph> <paragraph num="(7)"> <text>An evaluation by the procurement agency of the success of its MBE program, which evaluation shall include a brief description of the procurement agency's outreach efforts to MBE prime contractors and MBE subcontractors.</text> </paragraph> </paragraph> <paragraph num="B."> <text>As to procurement contracts for architectural services and engineering services reported under §A of this regulation, the report shall identify by separate category of MBE procurements for:</text> <paragraph num="(1)"> <text>Architectural services; and</text> </paragraph> <paragraph num="(2)"> <text>Engineering services.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A report under §A of this regulation shall be in a form prescribed by the Governor’s Office of Small, Minority & Women Business Affairs and the Department of Transportation and approved by the Board of Public Works.</text> </paragraph> <paragraph num="D."> <text>The Special Secretary for the Governor's Office of Small, Minority & Women Business Affairs may waive the requirement for a procurement agency to report MBE participation by industry type under §A of this regulation except for real property title insurance services if the spending threshold for the industry type is too low for the unit to provide sufficient data.</text> </paragraph> <paragraph num="E."> <text>Each procurement agency shall submit to the Board of Public Works and the Governor's Office of Small, Minority & Women Business Affairs by July 31 of each year the report of waivers required under Regulation .11E of this chapter.</text> </paragraph> <paragraph num="F."> <text>Each procurement agency shall furnish any other information or periodic reports requested by the Governor's Office of Small, Minority & Women Business Affairs or the Department of Transportation in connection with MBE certification and procurement, or any other matters related to the administration, effectiveness, or continuation of the Minority Business Enterprise Program.</text> </paragraph> <paragraph num="G."> <text>The Governor’s Office of Small, Minority & Women Business Affairs shall prepare an annual report summarizing the information the Governor’s Office of Small, Minority & Women Business Affairs receives under §A of this regulation, for submission by the end of each calendar year to the Board of Public Works and, subject to State Government Article, §2-1257, Annotated Code of Maryland, the Legislative Policy Committee of the Maryland General Assembly, and to each procurement agency. If applicable, this report shall include MBE participation data for each unit by industry type.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101 and 14-301—14-308, Annotated Code of Maryland;</annotation> <annotation type="History" subtype="Administrative History">Effective date: June 4, 1984 (11:11 Md. R. 965)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended effective September 2, 1991 (18:17 Md. R. 1922); July 20, 1992 (19:14 Md. R. 1286)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E amended effective September 2, 1991 (18:17 Md. R. 1922)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective September 2, 1991 (18:17 Md. R. 1922)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10A, B amended effective September 2, 1991 (18:17 Md. R. 1922)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15 amended effective September 2, 1991 (18:17 Md. R. 1922)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 repealed and new Regulation .16 adopted effective September 2, 1991 (18:17 Md. R. 1922)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17 amended effective September 2, 1991 (18:17 Md. R. 1922)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17A amended effective January 2, 1995 (21:26 Md. R. 2192)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective May 20, 1996 (23:10 Md. R. 733)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective January 22, 2001 (28:1 Md. R. 27)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended effective March 8, 1999 (26:5 Md. R. 393)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15B amended effective May 1, 2000 (27:8 Md. R. 799)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective March 18, 2002 (29:5 Md. R. 505)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11E—G adopted effective May 24, 2004 (31:10 Md. R. 796)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17 amended effective May 24, 2004 (31:10 Md. R. 796)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective April 11, 2005 (32:7 Md. R. 685)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective July 26, 2010 (37:15 Md. R. 1000); December 12, 2011 (38:25 Md. R. 1582); May 13, 2013 (40:9 Md. R. 789); August 19, 2013 (40:16 Md. R. 1345)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01D adopted effective February 7, 2011 (38:3 Md. R. 152)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended effective November 7, 2005 (32:22 Md. R. 1759); January 14, 2010 (37:1 Md. R. 16); May 13, 2013 (40:9 Md. R. 789); September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended effective January 14, 2010 (37:1 Md. R. 16)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective January 14, 2010 (37:1 Md. R. 16)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B, D amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07A amended effective July 26, 2010 (37:15 Md. R. 1000)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07E amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); December 12, 2011 (38:25 Md. R. 1582)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective December 12, 2011 (38:25 Md. R. 1582); May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09A amended effective July 26, 2010 (37:15 Md. R. 1000); August 19, 2013 (40:16 Md. R. 1345); January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09B amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09C amended effective April 7, 2008 (35:7 Md. R. 751); January 14, 2010 (37:1 Md. R. 16); May 31, 2010 (37:11 Md. R. 766); July 15, 2019 (46:14 Md. R. 623); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09E amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10A amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10B amended effective April 7, 2008 (35:7 Md. R. 751); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10B, C amended effective December 25, 2023 (50:25 Md. R. 1090)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10B, E amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11A amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11E amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 amended effective April 7, 2008 (35:7 Md. R. 751); December 12, 2011 (38:25 Md. R. 1582)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12A, E amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12C, E amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12-1 adopted effective December 12, 2011 (38:25 Md. R. 1582)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12-1A amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12-1C, D amended effective June 9, 2014 (41:11 Md. R. 605)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12-1E adopted effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12-1F adopted effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12-1F amended effective September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13 amended effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13A amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14 repealed effective December 12, 2011 (38:25 Md. R. 1582)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15 amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15B amended effective May 22, 2006 (33:10 Md. R. 882); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15D adopted effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16A, B amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 repealed effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17 amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17A amended effective April 7, 2008 (35:7 Md. R. 751); January 14, 2010 (37:1 Md. R. 16); July 26, 2010 (37:15 Md. R. 1000); February 7, 2011 (38:3 Md. R. 152); April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17B amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> </annotations> </chapter> <chapter num="04" heading="Contractor's Affirmative Action Plan Review/Approval and Compliance Monitoring Process — DOT"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Administration” means any one of the following units of the Department of Transportation:</text> <paragraph num="(a)"> <text>Maryland Port Administration;</text> </paragraph> <paragraph num="(b)"> <text>Motor Vehicle Administration;</text> </paragraph> <paragraph num="(c)"> <text>State Aviation Administration;</text> </paragraph> <paragraph num="(d)"> <text>State Highway Administration;</text> </paragraph> <paragraph num="(e)"> <text>Maryland Transportation Authority;</text> </paragraph> <paragraph num="(f)"> <text>Mass Transit Administration;</text> </paragraph> <paragraph num="(g)"> <text>State Railroad Administration; and</text> </paragraph> <paragraph num="(h)"> <text>Office of Assistant Secretary, Administration.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Administration Equal Opportunity (EO) Officer” means an employee of the Department skilled in civil rights policies, practices, procedures, and equal opportunity compliance review and evaluation functions.</text> </paragraph> <paragraph num="(3)"> <text>“Administrator” means the chief executive officer of an administration.</text> </paragraph> <paragraph num="(4)"> <text>“Affirmative actions” means the efforts exerted toward achieving equal employment opportunity (EEO) through positive, aggressive, and continuous results-oriented measures to correct past and present discriminatory practices and their effects on the conditions and privileges of employment.</text> </paragraph> <paragraph num="(5)"> <text>“Board representative” means the official appointed by the Board to review contractor affirmative action plans.</text> </paragraph> <paragraph num="(6)"> <text>“Certification” means the action by which the Board Representative acknowledges that the contractor's affirmative action plan meets the requirements as presented by Article III, §C of the Governor's Amended Code of Fair Practices.</text> </paragraph> <paragraph num="(7)"> <text>“Community resources list” means a compilation of local or State-wide organizations, agencies, community groups, and leaders, prepared as a guide for use by a contractor in implementing the contractor's affirmative action plan.</text> </paragraph> <paragraph num="(8)"> <text>“Contractor affirmative action plan compliance monitoring process” means the procedure used by the Department to assure that contractors are complying with their affirmative action requirements.</text> </paragraph> <paragraph num="(9)"> <text>“Corrective action” means specific actions, as included in the contractor's written and signed commitment to be taken with time limits and goals, to remedy a violation of applicable equal employment opportunity regulations.</text> </paragraph> <paragraph num="(10)"> <text>“Discrimination” means a distinction in treatment, whether intentional or unintentional, based on political or religious opinion or affiliation, race, color, creed, national origin, sex, physical or mental handicap, or age, except when sex, handicap, or age involves a bona fide job requirement.</text> </paragraph> <paragraph num="(11)"> <text>“Equal employment opportunity requirements” means all contract provisions relative to equal employment opportunity.</text> </paragraph> <paragraph num="(12)"> <text>“Equal employment opportunity (EEO)” means the absence of partiality or distinction in employment treatment, so that the rights of all persons to work and advance on the basis of merit, ability, and potential are maintained.</text> </paragraph> <paragraph num="(13)"> <text>“E.E.O.C.” means the Federal Equal Employment Opportunity Commission.</text> </paragraph> <paragraph num="(14)"> <text>“Equal opportunity compliance review” means an evaluation and determination of a contractor's or subcontractor's compliance with equal opportunity requirements.</text> </paragraph> <paragraph num="(15)"> <text>“Good faith effort” means a results-oriented positive action designed to achieve an affirmative action objective or goal.</text> </paragraph> <paragraph num="(16)"> <text>“Office of the Secretary, Contract Staff” means the unit within the Office of the Secretary responsible for meeting with the Board on contractual matters other than certification as defined above.</text> </paragraph> <paragraph num="(17)"> <text>“Show cause notice” means a written notification to a contractor based on the determination of an equal-opportunity officer indicating non-compliance with the equal opportunity requirements as provided for in the special provisions of the bid document, and the contractor's affirmative action plan, and Article III of the Executive Order promulgating the Code of Fair Practices (amended).</text> </paragraph> <paragraph num="(18)"> <text>“Special provisions respecting contractor affirmative action plans” means the equal opportunity requirements which, when translated into an affirmative action plan, legally obligates the contractor to take affirmative actions as provided for in the contractor's affirmative action plan.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Contractor Affirmative Action Plan Review/Approval Process."> <paragraph num="A."> <text>Contract Advertisement. All bids or offers on construction contracts shall include the Pre-Approved Contractor Affirmative Action Plan which outlines the contractor's and subcontractors' responsibilities to insure equal opportunity. When vendors secure the project plans and specifications, with the provisions included, they also shall receive a copy of the Minority Business Enterprise List and the Community Resources List to use as reference materials in developing and implementing their Affirmative Action Plans.</text> </paragraph> <paragraph num="B."> <text>Pre-Bid or Pre-Proposal Conference. When a pre-bid or pre-proposal conference is held, the Administration Equal Opportunity Officer shall explain the Pre-Approved Contractor Affirmative Action Plan and the use of resource materials provided to assist contractors in implementing their Affirmative Action Plans if they are selected as the successful bidder or offeror.</text> </paragraph> <paragraph num="C."> <text>Submissions. The vendors shall submit their bids or proposals in accordance with instructions issued by an Administration.</text> </paragraph> <paragraph num="D."> <text>Selection of Contractor. The Administration shall select the responsible bidder or offeror submitting the most favorable bid or most advantageous offer.</text> </paragraph> <paragraph num="E."> <text>Administration Submittal. The Administration shall submit the Pre-Approved Contractor Affirmative Action Plan along with other contract documents to the Contract Unit, OASA for the Board's action.</text> </paragraph> <paragraph num="F."> <text>Board of Public Works Action. The Board reviews and approves the contract.</text> </paragraph> <paragraph num="G."> <text>Administration Action. The Administration issues a “Notice to Proceed”.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Contractor Affirmative Action Plan Compliance Monitoring Process."> <paragraph num="A."> <text>Once the Board has approved a contract, and a “notice to proceed” has been issued by the Administration, the formal contractor affirmative action plan compliance monitoring process begins and continues throughout the life of the contract.</text> </paragraph> <paragraph num="B."> <text>The Administration's equal opportunity officer will contact the contractor to review specific compliance requirements and to give the contractor a compliance assistance package containing suggested guidelines and forms.</text> </paragraph> <paragraph num="C."> <text>The following points shall be considered made when priorities are established for an on-site compliance review:</text> <paragraph num="(1)"> <text>Whether there has been compliance with the approved affirmative action plan based on an evaluation of reports and documents;</text> </paragraph> <paragraph num="(2)"> <text>Whether contracts are being performed in a geographic area where there is a significant minority labor force or female labor force, or both, within a reasonable recruitment area;</text> </paragraph> <paragraph num="(3)"> <text>Whether contracts are being let which hold a great potential for employment and promotion of minorities and women.</text> </paragraph> </paragraph> <paragraph num="D."> <text>The Administration's equal opportunity officer shall provide written notification to the contractor (copies to the Administrator and the DOT equal opportunity officer) of a pending compliance review at least 14 days before the on-site verification and interview stage of the compliance process. This will also serve as notification to the contractor of the scheduled date and location of the review and the time period to be covered by the review.</text> </paragraph> <paragraph num="E."> <text>The Administration's equal opportunity officer will conduct an on-site inspection of the project and inspect records to assure compliance with the contractor's approved affirmative action plan.</text> </paragraph> <paragraph num="F."> <text>There shall be an exit conference at which time the Administration's equal opportunity officer shall discuss any preliminary findings with the contractor that could lead to a determination of non-compliance. The Administration's equal opportunity officer shall discuss both the voluntary corrective actions that may have been implemented as a result of the visit and also the process and time by which the contractor will be informed of the final compliance determination.</text> </paragraph> <paragraph num="G."> <text>After the completion of the on-site verification phase, the Administration's equal opportunity officer shall review all available information including that which was provided by the contractor and obtained from on-site visits and also prepare a status report indicating compliance or non-compliance. A copy of the report shall be provided to the contractor.</text> </paragraph> <paragraph num="H."> <text>If the Administration's equal employment officer determines that the contractor is in compliance, the contractor shall receive written notification to that effect and copies of the notification shall be sent to the DOT equal opportunity officer, the Administrator, and the Board representative.</text> </paragraph> <paragraph num="I."> <text>If it is determined that a contractor appears not to be in compliance with the affirmative action plan, the Administrator or designated representative shall issue a “show-cause notice”. This notice demands that the contractor show cause why the contractor should not be found not to be in compliance. This notice shall delineate a list of the deficiencies, establish a compliance conference date, outline the possible administrative actions that can be taken, and provide a forum for the contractor to present the contractor's case.</text> </paragraph> <paragraph num="J."> <text>A compliance conference shall be held by the Administrator or a designated representative, the Administration's equal opportunity officer, and the contractor to discuss the deficiencies.</text> </paragraph> <paragraph num="K."> <text>If a contractor corrects the deficiencies, the “show-cause notice” shall be rescinded. The contractor shall be so notified, by letter, confirming that the contractor is in compliance.</text> </paragraph> <paragraph num="L."> <text>If a contractor refuses to make the necessary corrections to cause a rescission of the “show-cause notice”, the Administrator shall take the appropriate steps to begin administrative action to compel the contractor to comply with the affirmative action plan.</text> </paragraph> <paragraph num="M."> <text>Except for those contracts that go before the Board for approval, the Secretary of Transportation shall have the final approval on all administrative actions imposed on contractors found to remain not in compliance. In those instances when the Board has the final authority, the Secretary shall recommend that sanctions be imposed.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01B amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> <annotation type="History" subtype="Administrative History">Regulations .02 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulations .03 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulations .03I amended effective May 2, 2022 (49:9 Md. R. 531)</annotation> </annotations> </chapter> <chapter num="05" heading="Procurement from Maryland Correctional Enterprises, Blind Industries and Services of Maryland, and the Employment Works Program"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Blind Industries and Services of Maryland” means the entity designated by law to produce supplies manufactured and assembled by processes involving blind workers.</text> </paragraph> <paragraph num="(2)"> <text>“Community service provider” means an entity, the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual, that is:</text> <paragraph num="(a)"> <text>Organized under the laws of the United States or the State of Maryland;</text> </paragraph> <paragraph num="(b)"> <text>Accredited by the Division of Rehabilitation Services of the State Department of Education for participation in the Employment Works Program; and</text> </paragraph> <paragraph num="(c)"> <text>Operated in the interests of individuals who have a mental or physical disability, including blindness, that:</text> <paragraph num="(i)"> <text>Constitutes a substantial barrier to employment; and</text> </paragraph> <paragraph num="(ii)"> <text>Prevents the individual from engaging in competitive employment.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(2-1)"> <text>“Employment Works Program” means the program established in the Department of General Services by State Finance and Procurement Article, §14-108, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(3)"> <text>“Fair market price” means that price established in accordance with Regulation .03 of this chapter for a supply or service provided by a selling entity other than Maryland Correctional Enterprises.</text> </paragraph> <paragraph num="(4)"> <text>“Individual-with-disability-owned business” means a business:</text> <paragraph num="(a)"> <text>That is organized under the laws of the United States or of the State;</text> </paragraph> <paragraph num="(b)"> <text>That is majority owned by an individual or individuals determined by the Division of Rehabilitation Services in the State Department of Education to have a disability, as defined by Education Article, Title 21, Subtitle 3, Annotated Code of Maryland;</text> </paragraph> <paragraph num="(c)"> <text>Whose majority owner or owners are directly and significantly engaged in the daily operation of the business;</text> </paragraph> <paragraph num="(d)"> <text>Whose workforce includes individuals with disabilities comprising a percentage of the workforce that is at or above the minimum required under the policies or guidelines established by the Pricing and Selection Committee for Preferred Providers;</text> </paragraph> <paragraph num="(e)"> <text>Whose total gross revenues for contracts assigned under the Employment Works Program at the time of assignment do not exceed the maximum allowed under policies or guidelines established by the Pricing and Selection Committee for Preferred Providers; and</text> </paragraph> <paragraph num="(f)"> <text>That continues to meet all other eligibility criteria established by the Pricing and Selection Committee for Preferred Providers.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>“Maryland Correctional Enterprises” means a unit of the Division of Corrections of the Department of Public Safety and Correctional Services that is authorized by law to use prison labor to produce supplies or to provide services for sale to public entities and certain not-for-profit organizations.</text> </paragraph> <paragraph num="(6)"> <text>“Master list” means a consolidated catalog, produced at least annually, that lists the supplies and services subject to procurement under this chapter. The master list indicates:</text> <paragraph num="(a)"> <text>The selling entity from which a particular supply or service may be purchased;</text> </paragraph> <paragraph num="(b)"> <text>The fair market price at which the supply or service will be sold; and</text> </paragraph> <paragraph num="(c)"> <text>The ordering priority under Regulation .07C or D of this chapter if the supply or service can be furnished by more than one selling entity.</text> </paragraph> </paragraph> <paragraph num="(6-1)"> <text>“Preferred Provider” means a provider of supplies or services given preference under this chapter.</text> </paragraph> <paragraph num="(7)"> <text>“Prevailing average market price” means the current averaged competitive price as determined by the Pricing and Selection Committee for Preferred Providers for the same or substantially similar supply or service provided by State Use Industries.</text> </paragraph> <paragraph num="(8)"> <text>“Pricing and Selection Committee for Preferred Providers” means the pricing authority responsible for reviewing and verifying the prevailing average market prices as proposed by Maryland Correctional Enterprises, setting the prices of supplies and services that Blind Industries and Services of Maryland provides to reflect the fair market prices for those supplies and services, and determining the fair market price of supplies, services, and other sales that the Employment Works Program community services providers and individual-with-disability-owned businesses provide, among other duties in accordance with State Finance and Procurement Article, §14-106, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(9)"> <text>“Selling entity” means Maryland Correctional Enterprises, the Blind Industries and Services of Maryland, Employment Works Program community service providers, or individual-with-disability-owned businesses.</text> </paragraph> <paragraph num="(10)"> <text>“State aided or controlled entity” means any public or quasi-public institution that receives aid from the State or that is owned, controlled, or managed by the State.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Scope."> <paragraph num="A."> <text>Except as otherwise provided in these regulations, this chapter applies to every procurement of supplies or services that can be provided by a selling entity.</text> </paragraph> <paragraph num="B."> <text>Only supplies and services that directly benefit Division of Correction inmates, blind persons, or disabled persons, through meaningful work experiences, occupational opportunities, vocational rehabilitation and training, and work therapy, are to be provided by the selling entities.</text> </paragraph> <paragraph num="C."> <text>This chapter does not apply to supplies or services provided under subcontract to a selling entity.</text> </paragraph> <paragraph num="D."> <text>Nothing in this chapter shall require a procurement agency to lessen or otherwise alter its reasonable performance, quality, design, delivery, or quantity specifications in order to meet a selling entity's ability to provide a supply or service.</text> </paragraph> <paragraph num="E."> <text>Except as specifically provided in these regulations, nothing contained in this chapter shall limit or define a procurement agency's rights or remedies otherwise available by law or by contract.</text> </paragraph> <paragraph num="F."> <text>Services procured from an Employment Works Program community service provider are not subject to the cost savings requirements of State Personnel and Pensions Article, §13-405, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Determining Fair Market Price."> <paragraph num="A."> <text>In determining fair market prices for services or supplies, the Pricing and Selection Committee for Preferred Providers may consider:</text> <paragraph num="(1)"> <text>The price on the open market of a similar quantity of services or supplies of equal quality and standards that meet the requirements of the procurement agencies;</text> </paragraph> <paragraph num="(2)"> <text>The price last paid as a result of a competitive procurement selection process for substantially similar services or supplies as adjusted for inflation, deflation, or other change in market conditions;</text> </paragraph> <paragraph num="(3)"> <text>A reliable independent appraisal of the value of substantially similar services or supplies;</text> </paragraph> <paragraph num="(4)"> <text>A procurement agency's or control authority's reasonable estimate of the cost of substantially similar services or supplies and any other pertinent information; and</text> </paragraph> <paragraph num="(5)"> <text>The cost of the services if performed by State personnel.</text> </paragraph> </paragraph> <paragraph num="B."> <text>If the fair market price for a service or supply cannot be determined absent a competitive procurement, the solicitation shall notify prospective bidders or offerors that one or more selling entities may respond to the solicitation and that any subsequent contract may be awarded to a selling entity if its bid or offer is deemed a fair market price by the Pricing and Selection Committee for Preferred Providers.</text> </paragraph> <paragraph num="C."> <text>Any negotiations conducted with a selling entity for the purpose of establishing a fair market price for a contract for services shall include a representative from the procurement agency.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Duties of the Pricing and Selection Committee for Preferred Providers."> <text>The Pricing and Selection Committee for Preferred Providers shall:</text> <paragraph num="A."> <text>Determine the prevailing average market prices for supplies and services provided by Maryland Correctional Enterprises;</text> </paragraph> <paragraph num="B."> <text>Determine the fair market prices for supplies and services provided by Maryland Correctional Enterprises;</text> </paragraph> <paragraph num="C."> <text>Include in the master list:</text> <paragraph num="(1)"> <text>A listing of those supplies and services available for procurement from Maryland Correctional Enterprises,</text> </paragraph> <paragraph num="(2)"> <text>The fair market price for each supply and service,</text> </paragraph> <paragraph num="(3)"> <text>Any necessary instructions governing the procurement of a supply or service from Maryland Correctional Enterprises;</text> </paragraph> </paragraph> <paragraph num="D."> <text>Compile, publish, and distribute, at least annually, the master list, which shall include:</text> <paragraph num="(1)"> <text>Listings of supplies and services available from each of the selling entities,</text> </paragraph> <paragraph num="(2)"> <text>The fair market prices of those supplies and services,</text> </paragraph> <paragraph num="(3)"> <text>Instructions governing the procurement of those supplies and services, including the order of procurement priority when the same or substantially similar supply or service can be provided by more than one selling entity;</text> </paragraph> </paragraph> <paragraph num="E."> <text>Consult periodically with the procurement agencies and the selling entities to establish reasonable and uniform standards, including those governing quantity, quality, style, design, and delivery; and</text> </paragraph> <paragraph num="F."> <text>Designate an appropriate coordinating entity to facilitate distribution of procurement contracts among sheltered workshops.</text> </paragraph> <paragraph num="G."> <text>Review and verify the prevailing average market prices, as proposed by Maryland Correctional Enterprises, when changes are made to the pricing of existing goods and services that are available from Maryland Correctional Enterprises or for new goods or services that Maryland Correctional Enterprises intends to make available;</text> </paragraph> <paragraph num="H."> <text>Meet as often as necessary, at the call of any of its members, but at least annually;</text> </paragraph> <paragraph num="I."> <text>Ensure that supplies, services, or other sales provided by Blind Industries and Services of Maryland or an Employment Works Program community service provider create work opportunities for individuals who have a mental or physical disability, including blindness, for which Blind Industries and Services of Maryland or the Employment Works Program community service provider was established to assist;</text> </paragraph> <paragraph num="J."> <text>Choose appropriate supplies, services, or other sales for Employment Works Program community service providers and individual-with-disability-owned businesses to offer for procurement;</text> </paragraph> <paragraph num="K."> <text>Except for services and supplies provided under the Maryland Blind Vending Program, set prices to reflect the fair market prices of supplies, services, or other sales that Blind Industries and Services of Maryland, Employment Works Program community service providers and individual-with-disability-owned businesses provide;</text> </paragraph> <paragraph num="L."> <text>Adjust prices for the supplies, services, or other sales that Blind Industries and Services of Maryland and Employment Works Program community service providers and individual-with-disability-owned businesses provide, in accordance with market conditions;</text> </paragraph> <paragraph num="M."> <text>At the request of an Employment Works Program community service provider or an individual-with-disability-owned business, review and, if appropriate, change the price of a supply, service, or other sale;</text> </paragraph> <paragraph num="N."> <text>Establish and periodically review eligibility policies or guidelines for participating Employment Works Program community service providers and individual-with-disability-owned businesses;</text> </paragraph> <paragraph num="O."> <text>Maintain a current list of Employment Works Program community service providers and individual-with-disability-owned businesses;</text> </paragraph> <paragraph num="P."> <text>Periodically review and revise the list of Employment Works Program community service providers and individual-with-disability-owned businesses, and send any revised list to the Chief Procurement Officer, who shall make the list available to each person responsible for buying supplies or services for the State or a State aided or controlled entity;</text> </paragraph> <paragraph num="Q."> <text>Maintain current lists of supplies, services, or other sales that Maryland Correctional Enterprises, Blind Industries and Services of Maryland, and Employment Works Program community service providers and individual-with-disability-owned businesses provide;</text> </paragraph> <paragraph num="R."> <text>Periodically review and revise the lists of supplies, services, or other sales maintained in accordance with §Q of this regulation, and send any revised list to the Chief Procurement Officer, who shall make the lists available to each person responsible for buying supplies or services for the State or a State aided or controlled entity; and</text> </paragraph> <paragraph num="S."> <text>Review a request for and, if in the State’s interest, grant a waiver to a requested State or State-aided or controlled entity if either of the following conditions apply, in accordance with State Finance and Procurement Article, §14–103(d)(1), Annotated Code of Maryland:</text> <paragraph num="(1)"> <text>The price of the needed supplies and services is at least 10 percent above market rates for similar supplies and services; or</text> </paragraph> <paragraph num="(2)"> <text>The time at which the needed supplies and services would be delivered does not meet the entity's needs.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Coordination."> <text>The Pricing and Selection Committee for Preferred Providers shall meet at least annually, at the call of the Secretary of General Services, in order to:</text> <paragraph num="A."> <text>Review the status of State procurement under this chapter;</text> </paragraph> <paragraph num="B."> <text>Resolve any disputes among the selling entities, including disputes relating to pricing, pricing mechanisms, procurement priorities, and procurement procedures; and</text> </paragraph> <paragraph num="C."> <text>Develop recommendations to improve the procedures set forth in this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Responsibilities of Selling Entities."> <text>Each selling entity shall:</text> <paragraph num="A."> <text>Annually, or more frequently if required, transmit to the Pricing and Selection Committee for Preferred Providers, in the form and by the date prescribed by the Pricing and Selection Committee for Preferred Providers, a complete listing of services and supplies the selling entity reasonably will be able to provide for State procurement during the 12-month period following scheduled publication of the master list, together with the suggested fair market prices for each service or supply;</text> </paragraph> <paragraph num="B."> <text>Consult periodically with the procurement agencies and, as appropriate, with the Secretary of General Services, or designee, to assist in the establishment of reasonable and uniform standards, including those governing quantity, quality, style, design, and delivery of services and supplies pursuant to this chapter;</text> </paragraph> <paragraph num="C."> <text>Within 5 working days of receipt of an inquiry from a procurement agency, notify the procurement agency and the Secretary of General Services or designee if the requested service or supply can or cannot be provided in accordance with the procurement agency's specifications within the time specified in the solicitation;</text> </paragraph> <paragraph num="D."> <text>Promptly notify the Secretary of General Services or designee if any service or supply included in the master list shall become unavailable;</text> </paragraph> <paragraph num="E."> <text>Immediately notify the Secretary of General Services or designee of any unresolved dispute with a procurement agency and request its resolution by the Secretary or designee.</text> </paragraph> <paragraph num="F."> <text>Within 90 days after the end of each fiscal year, a preferred provider awarded a contract in accordance with State Finance and Procurement Article, §14–103, Annotated Code of Maryland, shall report to the Department of General Services the information listed in subsections (1) and (2) of this section.</text> <paragraph num="(1)"> <text>For the preceding fiscal year, the report shall state the total number of full–time equivalents for individuals with disabilities who contributed to the work of the contracts.</text> </paragraph> <paragraph num="(2)"> <text>For the preceding fiscal year, Maryland Correctional Enterprises shall report the length of time between each order and delivery of supplies and services.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Responsibilities of Procurement Agencies."> <paragraph num="A."> <text>General Purchasing Requirements.</text> <paragraph num="(1)"> <text>Except as provided in §B of this regulation, each procurement agency shall procure available supplies and services from a selling entity in accordance with this chapter.</text> </paragraph> <paragraph num="(2)"> <text>If a selling entity's price for needed services or supplies exceeds the funds available for the procurement, the procurement agency shall attempt to negotiate an acceptable price with the selling entity.</text> </paragraph> <paragraph num="(3)"> <text>To the extent practicable, a State unit or State aided or controlled entity shall include in a maintenance contract that has a component for housekeeping or janitorial services, a requirement that a prime contractor procure janitorial products from Blind Industries and Services of Maryland if the specified products are made, manufactured, remanufactured, or assembled by Blind Industries and Services of Maryland and are available.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Exceptions. A procurement agency is not required to obtain a supply or service from a selling entity if:</text> <paragraph num="(1)"> <text>The selling entity is unable to:</text> <paragraph num="(a)"> <text>Furnish the needed supply or service within a reasonable time, or</text> </paragraph> <paragraph num="(b)"> <text>Meet the procurement agency's reasonable specifications for the supply or service;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The Pricing and Selection Committee for Preferred Providers deems the selling entity’s price for the supply or service to exceed its fair market price;</text> </paragraph> <paragraph num="(3)"> <text>The cost of procuring a supply or service from a selling entity in accordance with the procurement agency's specifications as approved by the appropriate control authority would exceed the budgetary allowance for the procurement;</text> </paragraph> <paragraph num="(4)"> <text>The procurement is an emergency procurement under COMAR 21.05.06; or</text> </paragraph> <paragraph num="(5)"> <text>The needed supply or service is not included in the master list.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Supplies and Services.</text> <paragraph num="(1)"> <text>Regardless of quantity needed, a procurement agency shall procure from a selling entity its requirements for supplies and services included in the master list unless exempted under §B of this regulation.</text> </paragraph> <paragraph num="(2)"> <text>If a supply or service is listed as available from more than one selling entity and no ordering priority is otherwise specified in the master list, the procurement agency shall, subject to §C(3) of this regulation, obtain that supply or service from a selling entity in accordance with the following order of priority:</text> <paragraph num="(a)"> <text>Maryland Correctional Enterprises;</text> </paragraph> <paragraph num="(b)"> <text>Blind Industries and Services of Maryland;</text> </paragraph> <paragraph num="(c)"> <text>The Employment Works Program.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>A selling entity that is unable to furnish a supply or perform a service within the time required by, or in accordance with the reasonable specifications of, a procurement agency will be deemed to have relinquished its priority under §C(2) of this regulation for that procurement to the selling entity next in order of priority.</text> </paragraph> <paragraph num="(4)"> <text>The procurement agency shall document actions taken under §C(3) of this regulation.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Estimates of Purchases. A procurement agency shall notify at least annually the Pricing and Selection Committee for Preferred Providers of the procurement agency’s forecast of recurring purchases during the next fiscal year of those supplies and services included in the master list.</text> </paragraph> <paragraph num="E."> <text>Unless bids or offers are needed to establish the fair market price for a supply or service, a procurement agency shall first survey in the order set forth in §C(2) or D(2) of this regulation, as appropriate, the interests of the selling entities in providing the needed supply or service before issuing a solicitation for the procurement.</text> </paragraph> <paragraph num="F."> <text>Disputes. A procurement agency shall promptly notify the Secretary of General Services or designee of any dispute with a selling entity concerning supplies or services.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Minority Business Status."> <text>In calculating compliance with the certified Minority Business Enterprise goals under COMAR 21.11.03 and for reporting purposes under COMAR 21.11.03.17, a procurement agency may not include in its MBE procurements the annual dollar value of contracts with the following:</text> <paragraph num="A."> <text>A preferred provider as defined in State Finance and Procurement Article, §14-101(d), Annotated Code of Maryland;</text> </paragraph> <paragraph num="B."> <text>A nonprofit entity in accordance with requirements mandated by State or federal law; or</text> </paragraph> <paragraph num="C."> <text>Providers of family and individual support services, community residential services, resource coordination services, behavioral support services, vocational and day services, and respite services, as those terms are defined in regulations adopted by the Maryland Department of Health.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Small Business."> <text>The selling entities do not qualify for small business procurement programs under COMAR 21.11.01.</text> </regulation> <annotations> <annotation type="Authority">Correctional Services Article, §3-515; State Finance and Procurement Article, §§12-101 and 14-101—14-108; Annotated Code of Maryland; Ch. 415, Acts of 2015; Ch. 313, Acts of 2016</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective March 8, 1999 (26:5 Md. R. 394); March 13, 2006 (33:5 Md. R. 523); February 23, 2009 (36:4 Md. R. 355); April 28, 2014 (41:8 Md. R. 473); March 11, 2019 (46:5 Md. R. 310); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02F adopted effective January 2, 1995 (21:26 Md. R. 2192); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02F amended effective December 25, 2000 (27:25 Md. R. 2284); February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 amended effective March 8, 1999 (26:5 Md. R. 394); March 13, 2006 (33:5 Md. R. 523); March 11, 2019 (46:5 Md. R. 310); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended effective February 23, 2009 (36:4 Md. R. 355); April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 Q, R amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04S adopted effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective March 8, 1999 (26:5 Md. R. 394); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06 amended effective March 8, 1999 (26:5 Md. R. 394)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06A amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06F adopted effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective March 8, 1999 (26:5 Md. R. 394); March 13, 2006 (33:5 Md. R. 523)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07A amended effective April 28, 2014 (41:8 Md. R. 473); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07C amended effective February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07D amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08A, B amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08C adopted effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08B amended effective March 13, 2006 (33:5 Md. R. 523)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective February 23, 2009 (36:4 Md. R. 355)</annotation> </annotations> </chapter> <chapter num="06" heading="Purchases from the Republic of South Africa" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective November 20, 1994 (21:23 Md. R. 1937)</annotation> </annotations> </chapter> <chapter num="07" heading="Miscellaneous Purchasing Preferences"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Environmentally preferable product or service” means a product or service that, throughout the full life cycle of the product or service:</text> <paragraph num="(a)"> <text>Is energy efficient, water efficient, biobased, non-ozone depleting, made with recycled content or nontoxic; or</text> </paragraph> <paragraph num="(b)"> <text>Has other attributes recognized as environmentally preferable by the Maryland Green Purchasing Committee.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Environmentally preferable purchasing” means the procurement or acquisition of goods and services that have a lesser or reduced effect on human health and the environment when compared with competing goods or services that serve the same purpose, based on the raw materials, manufacturing, packaging, distribution, use, reuse, operation, maintenance, and disposal of the goods or services.</text> </paragraph> <paragraph num="(3)"> <text>“EPEAT” means the electronic product environmental assessment tool.</text> </paragraph> <paragraph num="(4)"> <text>“Equipment” has the meaning stated in COMAR 21.01.02.01.</text> </paragraph> <paragraph num="(5)"> <text>“Lamp” means the component of a luminaire that produces the light.</text> </paragraph> <paragraph num="(6)"> <text>“Lumen” means a unit of measurement of luminous flux.</text> </paragraph> <paragraph num="(7)"> <text>“Luminaire” means the complete lighting unit, including the lamp or other component that produces light and the assembly that holds the lamp, including an assembly housing, a mounting bracket</text> </paragraph> <paragraph num="(8)"> <text>“Maryland firm” means a business entity that has its principal office or base of operations in the State.</text> </paragraph> <paragraph num="(9)"> <text>“Nonresident firm” means a business entity that has its principal office or base of operations outside this State.</text> </paragraph> <paragraph num="(10)"> <text>“Post consumer material” means only those products generated by businesses or consumers which have served their intended uses, and which have been separated or diverted from waste destined for disposal for the purpose of collection for recycling or reuse.</text> </paragraph> <paragraph num="(11)"> <text>“Product” means goods created by an industrial process or natural means, by hand or with tools, chemical processes, machinery or the like which includes equipment, motor vehicles, and information technology equipment, both hardware and software.</text> </paragraph> <paragraph num="(12)"> <text>“Recycled paper” means a paper product at least 80 percent of the total weight of which consists of the product of a manufacturing process that:</text> <paragraph num="(a)"> <text>Has converted a raw material into a valuable commodity; and</text> </paragraph> <paragraph num="(b)"> <text>Includes a total gross content of post-consumer material of at least 80 percent.</text> </paragraph> </paragraph> <paragraph num="(13)"> <text>“Restricted uplight luminaire” means a luminaire that:</text> <paragraph num="(a)"> <text>Except for a 0.5 percent maximum incidental uplight from reflection off mounting hardware, allows no direct light emission above a horizontal plane through the luminaire’s lowest lightemitting part; and</text> </paragraph> <paragraph num="(b)"> <text>Emits no more than 10 percent of the total direct light emission at or above a vertical angle of 80 degrees.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Reciprocal Preference—Resident Bidders/Offerors."> <text>Reciprocal preferences shall be in accordance with COMAR 21.05.01.04.</text> </regulation> <regulation prefix="Regulation" num=".03" heading="Recycled Paper Purchases."> <paragraph num="A."> <text>Of the total volume of paper that the Secretary of General Services buys, at least 90 percent shall be recycled paper.</text> </paragraph> <paragraph num="B."> <text>In purchasing any paper or paper products as supplies for any using agency pursuant to State Finance and Procurement Article, Title 4, Subtitle 3, Annotated Code of Maryland, the Secretary of General Services, to the fullest extent practicably possible, shall purchase or approve for purchase only such supplies as are manufactured or produced from recycled paper.</text> </paragraph> <paragraph num="C."> <text>If recycled paper that meets the definition set forth in Regulation .01B(7) of this chapter is unavailable, then for purposes of complying with the requirements of this chapter, the Department of General Services and other State agencies may purchase recycled paper and paper products that have the highest percentage of post-consumer material that, at minimum, meets EPA guidelines, provided that reasonable levels of competition, cost, availability, and technical performance are maintained.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Low Noise Supplies."> <paragraph num="A."> <text>All units of State government shall acquire by purchase or lease, to the greatest extent practicable, the quietest available supplies.</text> </paragraph> <paragraph num="B."> <text>Supplies certified by the Administrator of the United States Environmental Protection Agency as “low noise emission products” pursuant to §15 of the Noise Control Act of 1972 shall be considered to meet the intent of this regulation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Price Preference for Recycled Materials — Repealed" /> <regulation prefix="Regulation" num=".06" heading="Determinations."> <text>Whenever the provisions of this chapter cannot be satisfied, the procurement officer shall:</text> <paragraph num="A."> <text>Make a determination, subject to the approval of the agency head, that explains or justifies the need to make a procurement which does not satisfy the requirements of this chapter; and</text> </paragraph> <paragraph num="B."> <text>Retain that determination in the contract file for at least 3 years.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Mercury and Products that Contain Mercury."> <paragraph num="A."> <text>All procurement agencies shall give a preference under this regulation to procuring products and equipment that are mercury-free. If mercury-free products and equipment that meet the agency's product performance requirements are not commercially available, the procurement agency shall give preference under this regulation to products containing the least amount of mercury necessary to meet performance requirements.</text> </paragraph> <paragraph num="B."> <text>Procurement solicitations for products that may contain mercury shall give a price preference not exceeding 5 percent to bids or proposals for products that are mercury free or, if the procurement solicitation states, to products containing the least amount of mercury. A procurement officer:</text> <paragraph num="(1)"> <text>Shall specify in any specific procurement solicitation, a price preference not exceeding 5 percent; and</text> </paragraph> <paragraph num="(2)"> <text>May limit competition in any specific procurement solicitation to only mercury-free products.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Notice of the requirements under §B of this regulation shall be included in procurement solicitations if mercury is known to be a likely component of the products being procured.</text> </paragraph> <paragraph num="D."> <text>The head of a procurement agency or designee may determine that the price preference in §B of this regulation is not in the best interest of the State. If the head of a procurement agency or designee makes this determination, the procurement agency shall provide an alternative preference for products that are mercury free or for products containing the least amount of mercury.</text> </paragraph> <paragraph num="E."> <text>In all written and electronic procurements where mercury is a component of the products being offered, bidders and offerors shall certify the mercury content of offered products to be eligible for the preference. The mercury affidavit in COMAR 21.05.08.09 may be used for this certification.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Locally Grown Foods."> <paragraph num="A."> <text>“Locally grown food” means food grown in Maryland.</text> </paragraph> <paragraph num="B."> <text>State schools and facilities shall give a preference under this regulation to procuring locally grown food.</text> </paragraph> <paragraph num="C."> <text>State schools and facilities shall include in procurement solicitations a price preference not exceeding 5 percent to bids or proposals for locally grown food. A procurement officer:</text> <paragraph num="(1)"> <text>Shall specify in any specific procurement solicitation a price preference not exceeding 5 percent; and</text> </paragraph> <paragraph num="(2)"> <text>May limit competition in any specific procurement solicitation to only locally grown foods.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A price preference under this regulation cannot be used in conjunction with any other preference established in this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Environmentally Preferable Purchasing."> <paragraph num="A."> <text>All procurement agencies shall purchase environmentally preferable products and services unless purchasing environmentally preferable products and services would limit or supersede any requirements under any provision of law or result in the purchase of products and services that:</text> <paragraph num="(1)"> <text>Do not perform adequately for the intended use;</text> </paragraph> <paragraph num="(2)"> <text>Exclude adequate competition; or</text> </paragraph> <paragraph num="(3)"> <text>Are not available at a reasonable price in a reasonable period of time.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Designations.</text> <paragraph num="(1)"> <text>The Maryland Green Purchasing Committee as established in State Finance and Procurement Article, §14-410, Annotated Code of Maryland, shall designate a single point of contact to advise State agencies, suppliers, and other interested parties on environmentally preferable purchasing issues.</text> </paragraph> <paragraph num="(2)"> <text>The head of each procurement agency shall designate an employee to be responsible for annually reviewing agency specifications currently used by the unit and, to the extent practicable:</text> <paragraph num="(a)"> <text>Adopt the environmentally preferable specifications established by the Maryland Green Purchasing Committee in §C of this regulation; and</text> </paragraph> <paragraph num="(b)"> <text>Revise the unit’s procurement specifications in accordance with State Finance and Procurement Article, §14-410, Annotated Code of Maryland.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>Environmentally Preferable Purchasing Specifications.</text> <paragraph num="(1)"> <text>Publish and maintain, in electronic format available to the procurement agencies on the Department of General Services website, environmentally preferable specifications for products and services; and</text> </paragraph> <paragraph num="(2)"> <text>Periodically review and update the specifications to ensure the State is purchasing appropriate environmentally preferable products and services.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Compost."> <text>A State or local unit responsible for the maintenance of public lands in the State, to the maximum extent practicable, shall give preference to the use of compost in any land maintenance activity that is publicly funded.</text> </regulation> <regulation prefix="Regulation" num=".11" heading="Energy Efficient Outdoor Lighting Fixtures."> <paragraph num="A."> <text>If State funds are used to install or replace a permanent outdoor luminaire for lighting on the grounds of any building or facility owned or leased by the State or a unit of the State, procurement specifications shall require that:</text> <paragraph num="(1)"> <text>Design of the luminaire maximizes energy conservation and minimizes light pollution, glare, and light trespass;</text> </paragraph> <paragraph num="(2)"> <text>Illumination produced by the luminaire is the minimum illumination necessary for the intended purpose of the lighting; and</text> </paragraph> <paragraph num="(3)"> <text>For a luminaire with an output of more than 1,800 lumens, the luminaire is a restricted uplight luminaire.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Waiver.</text> <paragraph num="(1)"> <text>Except as provided in §B(4) of this regulation, the Secretary of General Services, the Secretary of Transportation, or the Chancellor of the University System of Maryland, or their designees, may waive the requirement of §A(3) of this regulation if they determine that a waiver is necessary for the lighting application.</text> </paragraph> <paragraph num="(2)"> <text>A waiver request shall include:</text> <paragraph num="(a)"> <text>A description of the lighting plan;</text> </paragraph> <paragraph num="(b)"> <text>A description of the efforts made to comply with the requirements of this regulation; and</text> </paragraph> <paragraph num="(c)"> <text>The reason a waiver is necessary.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>In considering a waiver request, the Secretary of General Services, the Secretary of Transportation, or the Chancellor of the University System of Maryland shall consider design safety, costs, and any other factors determined to be appropriate.</text> </paragraph> <paragraph num="(4)"> <text>A waiver request for a State building or facility owned or leased by an agency other than the Department of General Services, the Department of Transportation, or the University System of Maryland shall require Board of Public Works approval. A waiver request made to the Board of Public Works shall comply with §B(2) of this regulation.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Applicability. This regulation does not apply to a luminaire:</text> <paragraph num="(1)"> <text>Located on the grounds of a correctional facility;</text> </paragraph> <paragraph num="(2)"> <text>Required by federal regulation;</text> </paragraph> <paragraph num="(3)"> <text>Required for storm operations activities performed by the Department of Transportation;</text> </paragraph> <paragraph num="(4)"> <text>Required to illuminate the State flag or the flag of the United States;</text> </paragraph> <paragraph num="(5)"> <text>Used for sign illumination; or</text> </paragraph> <paragraph num="(6)"> <text>In a lighting plan where less than 25 percent of the luminaires are to be replaced.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".12" heading="Repealed." /> <regulation prefix="Regulation" num=".13" heading="Purchasing Electronic Products."> <paragraph num="A."> <text>In this regulation, “Electronic Product” means a product covered by EPEAT or another comprehensive environmental rating system approved by the Department of Information Technology.</text> </paragraph> <paragraph num="B."> <text>When purchasing an electronic product to be used by the State, a procurement agency shall purchase an electronic product that:</text> <paragraph num="(1)"> <text>Is listed and rated silver or gold on the EPEAT registry; or</text> </paragraph> <paragraph num="(2)"> <text>Meets nationally-recognized and consensus-based standards established by a comprehensive environmental rating system approved by the Department of Information Technology.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Waiver. The Secretary of Information Technology or designee may waive the requirement upon request by a procurement agency.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".14" heading="Recycle Services — Electronic Products."> <paragraph num="A."> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Certified e-Stewards recycler” means a recycler of electronic products that has successfully completed the e-Stewards certification program created by the Basel Action Network;</text> </paragraph> <paragraph num="(2)"> <text>“Electronic product” means a product acceptable for recycling by:</text> <paragraph num="(a)"> <text>A certified e-Stewards recycler;</text> </paragraph> <paragraph num="(b)"> <text>An R2-certified recycler; or</text> </paragraph> <paragraph num="(c)"> <text>A recycler of electronic products that meets nationally-recognized and consensus-based guidelines, standards, and systems for recycling that are approved by the Department of the Environment in consultation with the Department of General Services.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“R2-certified recycler” means a recycler of electronic products that is certified in the R2 practices standards that are maintained by R2 Solutions.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Beginning October 1, 2014, when procuring a services contract for electronic-products recycling, a State unit shall award the contract to a recycler of electronic products who:</text> <paragraph num="(1)"> <text>Is R2 or e-Stewards certified; or</text> </paragraph> <paragraph num="(2)"> <text>Meets nationally-recognized and consensus-based guidelines, standards, and systems for recycling that are approved by the Department of the Environment in consultation with the Department of General Services.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 14-401—14-403, 14-405, and 14-407,Annotated Code of Maryland; Ch. 593, Acts of 2010; Ch. 314, Acts of 2011</annotation> <annotation type="History" subtype="Administrative History">Effective date: January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective June 6, 1994 (21:11 Md. R. 953); October 18, 1999 (26:21 Md. R. 1631); May 26, 2003 (30:10 Md. R. 668); April 11, 2005 (32:7 Md. R. 685); March 5, 2012 (39:4 Md. R. 338 - two actions); May 13, 2013 (40:9 Md. R. 789); April 28, 2014 (41:8 Md. R. 473); March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective October 12, 1996 (23:20 Md. R. 1425)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective June 6, 1994 (21:11 Md. R. 953)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective February 7, 2011 (38:3 Md. R. 152)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 recodified to Regulation .06 and new Regulation .05 adopted effective June 6, 1994 (21:11 Md. R. 953)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 repealed effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05A amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 adopted effective May 26, 2003 (30:10 Md. R. 668)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 adopted effective March 12, 2007 (34:5 Md. R. 562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 repealed effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13 adopted effective May 13, 2013 (40:9 Md. R. 789)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13 amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14 adopted effective April 28, 2014 (41:8 Md. R. 473)</annotation> </annotations> </chapter> <chapter num="08" heading="Drug and Alcohol Free Workplace"> <regulation prefix="Regulation" num=".01" heading="Policy."> <paragraph num="A."> <text>Drug and alcohol abuse in the workplace leads to a decrease in productivity, economy, and the maximum benefit to be derived from the purchasing power of the State, thereby decreasing and undermining public confidence in the State procurement system.</text> </paragraph> <paragraph num="B."> <text>The State has an interest in assuring the public that recipients of funds under State procurement contracts are not using these monies to maintain or foster, directly or indirectly, workplaces where drug or alcohol abuse occurs.</text> </paragraph> <paragraph num="C."> <text>The State is committed to encouraging all non-State entities that do business with the State to make a good faith effort to eliminate unlawful drug use and drug and alcohol abuse from their workplaces.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Abuse” means the use of:</text> <paragraph num="(a)"> <text>Alcohol when it may impair job performance or endanger the safety of others in the workplace;</text> </paragraph> <paragraph num="(b)"> <text>Any illegal drug;</text> </paragraph> <paragraph num="(c)"> <text>Any over-the-counter drug when the user knows or should know that it may impair job performance or endanger the safety of others in the workplace; or</text> </paragraph> <paragraph num="(d)"> <text>Any prescription drug in a manner or under circumstances that the user knows or should know is inconsistent with its medically prescribed, intended use.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Alcohol” means ethyl alcohol or ethanol.</text> </paragraph> <paragraph num="(3)"> <text>“Conviction” means:</text> <paragraph num="(a)"> <text>A judgment of conviction, whether entered upon a finding of guilty or acceptance of a plea of guilty or nolo contendere, and the imposition of sentence; or</text> </paragraph> <paragraph num="(b)"> <text>The staying of a judgment of conviction and the placing of a defendant on probation after a finding of guilty or the acceptance of a plea of guilty or nolo contendere.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>“Drug” means:</text> <paragraph num="(a)"> <text>A controlled dangerous substance as defined in Criminal Law Article, §5-101, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(b)"> <text>Any substance, other than alcohol, caffeine, food, or tobacco, that when taken into the body, may impair one's mental faculties or change one's mood or physical performance.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>“Drug and alcohol free workplace” means a workplace in compliance with Regulation .03A of this chapter, and in which each employee is expressly prohibited from:</text> <paragraph num="(a)"> <text>Abusing alcohol and drugs; and</text> </paragraph> <paragraph num="(b)"> <text>Unlawfully manufacturing, distributing, dispensing, possessing, or using drugs.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>“Employee” means each officer, employee, agent, or servant of the recipient who, directly or indirectly, participates in the performance of a procurement contract. “Employee” includes an owner who, directly or indirectly, participates in the performance of a procurement contract.</text> </paragraph> <paragraph num="(7)"> <text>“Individual” means a bidder, offeror, or contractor having not more than one employee, including the bidder, offeror, or contractor.</text> </paragraph> <paragraph num="(8)"> <text>“Recipient” means an individual, a sole proprietorship, a partnership, a corporation, a joint venture, or any other entity that submits a bid or proposal for, or has been awarded, a procurement contract.</text> </paragraph> <paragraph num="(9)"> <text>“Under the influence of” means the use of drugs or alcohol in a manner that may impair job performance or endanger the safety of others in the workplace.</text> </paragraph> <paragraph num="(10)"> <text>“Workplace” means any place at which work is performed in accordance with the terms of a procurement contract.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Responsibility Determination."> <paragraph num="A."> <text>A bidder or offeror, other than an individual, may not be considered a responsible source for a procurement contract unless the bidder or offeror has certified, pursuant to COMAR 21.05.08.07B, that the bidder or offeror will provide a drug and alcohol free workplace by:</text> <paragraph num="(1)"> <text>Maintaining a workplace free of drug and alcohol abuse during the term of the contract;</text> </paragraph> <paragraph num="(2)"> <text>Publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of drugs, and the abuse of drugs or alcohol is prohibited in the contractor's workplace, and specifying the actions that will be taken against employees for violation of these prohibitions;</text> </paragraph> <paragraph num="(3)"> <text>Prohibiting its employees from working under the influence of drugs or alcohol;</text> </paragraph> <paragraph num="(4)"> <text>Refusing to hire or assign to work on the contract anyone whom the contractor knows, or in the exercise of due diligence should know, currently abuses drugs or alcohol and is not actively engaged in a bona fide drug or alcohol abuse assistance or rehabilitation program;</text> </paragraph> <paragraph num="(5)"> <text>Promptly informing the appropriate law enforcement agency of each drug-related crime that occurs in its workplace, if the contractor has observed the violation or otherwise has reliable information that a violation has occurred;</text> </paragraph> <paragraph num="(6)"> <text>Establishing drug and alcohol abuse awareness programs to inform its employees about:</text> <paragraph num="(a)"> <text>The dangers of drug and alcohol abuse in the workplace,</text> </paragraph> <paragraph num="(b)"> <text>The contractor's policy of maintaining a drug and alcohol free workplace,</text> </paragraph> <paragraph num="(c)"> <text>Any available drug or alcohol counseling, rehabilitation, and employee assistance programs, and</text> </paragraph> <paragraph num="(d)"> <text>The penalties that may be imposed upon employees who abuse drugs and alcohol in the workplace;</text> </paragraph> </paragraph> <paragraph num="(7)"> <text>Providing all employees engaged in the performance of a procurement contract with a copy of the statement required by §A(2), above;</text> </paragraph> <paragraph num="(8)"> <text>Notifying employees in the statement required by §A(2), above, that as a condition of continued employment on the procurement contract, the employee shall:</text> <paragraph num="(a)"> <text>Abide by the terms of the statement, and</text> </paragraph> <paragraph num="(b)"> <text>Notify the employer of any criminal drug or alcohol abuse conviction for an offense occurring in the workplace not later than 5 days after a conviction;</text> </paragraph> </paragraph> <paragraph num="(9)"> <text>Notifying the procurement officer within 10 days after receiving notice under §A(8)(b), above, or otherwise receiving actual notice of a conviction;</text> </paragraph> <paragraph num="(10)"> <text>Within 30 days after receiving notice under §A(8)(b), above, or otherwise receiving actual notice of a conviction, imposing one or more of the following sanctions or remedial measures on any employee who is convicted of a drug or alcohol abuse offense occurring in the workplace:</text> <paragraph num="(a)"> <text>Taking appropriate personnel action against an employee, up to and including termination, or</text> </paragraph> <paragraph num="(b)"> <text>Requiring an employee to satisfactorily participate in a bona fide drug or alcohol abuse assistance or rehabilitation program; and</text> </paragraph> </paragraph> <paragraph num="(11)"> <text>Making a good faith effort to maintain a drug and alcohol free workplace through implementation of §A(1)—(10), above.</text> </paragraph> </paragraph> <paragraph num="B."> <text>An individual may not be considered a responsible bidder or offeror for a procurement contract unless that individual certifies, pursuant to COMAR 21.05.08.07B, that the individual will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of drugs or the abuse of drugs or alcohol in the performance of the procurement contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Disqualification."> <text>Failure of a bidder or offeror to provide the certification required by Regulation . 03 shall render the bidder or offeror unqualified and ineligible for contract award.</text> </regulation> <regulation prefix="Regulation" num=".05" heading="Remedies."> <paragraph num="A."> <text>Suspension of Contract Payments. After making a determination that adequate evidence to suspect any of the causes in §D, below, exists, the procurement officer, with the approval of the agency head, the appropriate control agency, and the Office of the Attorney General, may suspend payments under the procurement contract.</text> </paragraph> <paragraph num="B."> <text>Contract Termination. After making a determination that any of the causes in §D, below, exists, the procurement officer, with the approval of the agency head, the appropriate control agency, and the Office of the Attorney General, may terminate the procurement contract for default under COMAR 21.07.01.11 or 21.07.03.15, as applicable.</text> </paragraph> <paragraph num="C."> <text>Suspension and Debarment. Upon initiating action under §A or B, above, the agency head, through the appropriate control agency, shall refer the matter to the Board for suspension and debarment under COMAR 21.08.06.</text> </paragraph> <paragraph num="D."> <text>The specific causes for suspension of contract payments, termination of a contract for default, or suspension and debarment are the:</text> <paragraph num="(1)"> <text>Contractor has submitted a false certification in response to a provision regarding a drug and alcohol free workplace under COMAR 21.05.08.07B or 21.07.01.25;</text> </paragraph> <paragraph num="(2)"> <text>Contractor has failed to comply with its certification under COMAR 21.05.08.07B or 21.07.01.25; or</text> </paragraph> <paragraph num="(3)"> <text>Contractor has failed to make a good faith effort to provide a drug and alcohol free workplace, as evidenced by recurring convictions of the contractor's employees for drug and alcohol offenses occurring in the workplace.</text> </paragraph> </paragraph> <paragraph num="E."> <text>A determination under this regulation to suspend contract payments, terminate a contract for default, or refer the matter to the Board for suspension and debarment may be waived by the agency head with the approval of the appropriate control agency and the Office of the Attorney General for a particular contract only if and so long as the waiver is necessary to prevent a severe disruption of the agency's operations or services to the detriment of the State or the public.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Implementation and Enforcement."> <paragraph num="A."> <text>A procurement agency shall be responsible for the implementation of these regulations.</text> </paragraph> <paragraph num="B."> <text>The control agencies shall be responsible for the enforcement of these regulations.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§11-201 and 12-101, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: October 1, 1990 (17:19 Md. R. 2322)</annotation> </annotations> </chapter> <chapter num="09" heading="Vending Facilities on Property Controlled by Department of General Services"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Blind person” means a person who, after examination by a physician skilled in diseases of the eye or by an optometrist, has been determined to have not more than 20/200 central visual acuity in the better eye with correcting lenses or an equally disabling loss of the visual fields to the extent that the field in the better eye is constricted to an angle of 20° or less.</text> </paragraph> <paragraph num="(2)"> <text>“Cost of Goods Sold” means the inventory cost of the products sold.</text> </paragraph> <paragraph num="(3)"> <text>“Department” means the Department of General Services.</text> </paragraph> <paragraph num="(4)"> <text>“Division” means the Division of Rehabilitation Services of the State Department of Education.</text> </paragraph> <paragraph num="(5)"> <text>“Licensed blind vendor” means a blind person who has been licensed by the Division to operate a vending facility on federal, State, or other property.</text> </paragraph> <paragraph num="(6)"> <text>“Occupant” means any State agency, board, commission, institution, or commercial concession which occupies space within property controlled by the Department.</text> </paragraph> <paragraph num="(7)"> <text>“Program” means the Maryland Vending Program for the Blind.</text> </paragraph> <paragraph num="(8)"> <text>“Property controlled by the Department” means any buildings, land, or other real property owned or leased by the State which is managed by Department personnel.</text> </paragraph> <paragraph num="(9)"> <text>“Reasonable services and maintenance costs in accordance with customary business practices” means personnel and repair costs, including equipment and transportation costs, taxes, overhead and administration costs and commercial vendor profits.</text> </paragraph> <paragraph num="(10)"> <text>“Receipts” means payments made to the program by a commercial vending company which operates services and maintains vending machines on property controlled by the property managing agency.</text> </paragraph> <paragraph num="(11)"> <text>“Vending facility” means vending machines, cafeterias, snack bars, and other concession stands for the sale of foods, beverages, newspapers, periodicals, confections, tobacco products, and other merchandise including the sale or exchange of chances for any lottery authorized by State law and conducted by an agency of the State.</text> </paragraph> <paragraph num="(12)"> <text>“Vending machine” means a currency-operated machine that dispenses products or services.</text> </paragraph> <paragraph num="(13)"> <text>“Vending machine income” means: receipts, other than those of a licensed blind vendor, from vending machine operations on property controlled by the Department after deducting costs of goods sold, including reasonable service and maintenance costs in accordance with customary business practices.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Priority."> <paragraph num="A."> <text>The Department shall cooperate with the Division to establish, whenever possible, vending facilities on property controlled by the Department.</text> </paragraph> <paragraph num="B."> <text>The Program has priority to operate a vending facility on property controlled by the Department, according to the following:</text> <paragraph num="(1)"> <text>The Department shall give the Program the first opportunity to operate:</text> <paragraph num="(a)"> <text>A new vending facility on property controlled by the Department, on terms that are equal to or more favorable than the Department would offer to another operator;</text> </paragraph> <paragraph num="(b)"> <text>An existing Program vending facility on property controlled by the Department on terms that are equal to or more favorable than the existing terms;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The Department may offer the opportunity to others only if the Program declines to accept the first opportunity to operate a vending facility.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Procedures for Establishment of Vending Facilities."> <paragraph num="A."> <text>Survey of Property. The Program, in cooperation with the Department and occupants, shall survey all property controlled by the Department and recommend to the Department what vending facilities are required to adequately serve the occupants at each location, according to the following:</text> <paragraph num="(1)"> <text>The Department shall provide to the Division an inventory of existing property controlled by the Department by July 1 of each year;</text> </paragraph> <paragraph num="(2)"> <text>As early as possible, the Department shall notify the Division in writing of plans to renovate existing property, relocate, purchase, build, or otherwise acquire management of property to be controlled by the Department;</text> </paragraph> <paragraph num="(3)"> <text>Factors to be considered by the Program and the Department include, but are not limited to:</text> <paragraph num="(a)"> <text>The site's accessibility;</text> </paragraph> <paragraph num="(b)"> <text>Available space;</text> </paragraph> <paragraph num="(c)"> <text>Available funding; and</text> </paragraph> <paragraph num="(d)"> <text>Other factors relevant to a determination of the suitability of a location.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>Determination of Need.</text> <paragraph num="(1)"> <text>The Program shall make a recommendation to the Department and, where appropriate, the occupant, within 30 days after receipt of notification regarding the need to establish, expand, relocate, or otherwise alter vending facilities at each site.</text> </paragraph> <paragraph num="(2)"> <text>The Department, after consultation with the occupant where appropriate, shall make the final decision regarding the location of all vending facilities on property controlled by the Department.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Operation of Vending Facilities."> <paragraph num="A."> <text>The Department and the Division shall enter into written agreements authorizing the establishment of each vending facility and setting forth the terms for operation and maintenance of each vending facility including, but not limited to, matters such as overhead, maintenance, utilities, equipment repair, and replacement.</text> </paragraph> <paragraph num="B."> <text>The Program shall manage all vending facilities on property controlled by the Department in accordance with the standards established by the written agreements and by COMAR 13A.11.04.</text> </paragraph> <paragraph num="C."> <text>The Program may contract with third parties to provide vending machine services on property controlled by the Department.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Vending Machine Income."> <text>Vending machine income resulting from the operation of vending machines on property controlled by the Department shall be paid to the Division. The Division shall distribute the vending machine income to the licensed blind vendor operating a vending facility where the vending machine income is generated or, if there is no person managing the vending facility, to the Program.</text> </regulation> <annotations> <annotation type="Authority">Education Article, §§21-301—21-303; State Finance and Procurement Article, §14-109; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: June 7, 1993 (20:11 Md. R. 917)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C repealed effective January 2, 2017 (43:26 Md. R. 1449)</annotation> </annotations> </chapter> <chapter num="10" heading="Living Wage"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Employee” means an individual who satisfies the criteria of the employer-employee relationship test which examines:</text> <paragraph num="(a)"> <text>If the employer has the power to select and hire the employee;</text> </paragraph> <paragraph num="(b)"> <text>If the employer pays the employee wages;</text> </paragraph> <paragraph num="(c)"> <text>If the employer has the power to discharge the employee;</text> </paragraph> <paragraph num="(d)"> <text>If the employer has the power to control the employee's conduct; and</text> </paragraph> <paragraph num="(e)"> <text>If the work is part of the regular business of the employer.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Employer” means:</text> <paragraph num="(a)"> <text>A contractor who:</text> <paragraph num="(i)"> <text>Has a State contract for services valued at $500,000 or more; or</text> </paragraph> <paragraph num="(ii)"> <text>Employs more than 10 employees and has a State contract for services valued at greater than $100,000 but less than $500,000; or</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>A subcontractor who:</text> <paragraph num="(i)"> <text>Performs work for a contractor who is an employer subject to the Living Wage Law on a State contract for services that is valued at $500,000 or more; or</text> </paragraph> <paragraph num="(ii)"> <text>Employs more than 10 employees and performs work for a contractor who is an employer subject to the Living Wage Law on a State contract for services that is valued at $100,000 or more but less than $500,000.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(3)"> <text>Services.</text> <paragraph num="(a)"> <text>“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.</text> </paragraph> <paragraph num="(b)"> <text>“Services” includes maintenance as defined in COMAR 21.01.02.01B(53) but does not include construction work or the purchase of goods.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>“Tier 1 Area” means Montgomery County, Prince George's County, Howard County, Anne Arundel County, Baltimore County, and Baltimore City.</text> </paragraph> <paragraph num="(5)"> <text>“Tier 2 Area” means any county in the State not included in the Tier 1 Area.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Employees Covered Under the Living Wage Law."> <paragraph num="A."> <text>The Living Wage applies to an employee who:</text> <paragraph num="(1)"> <text>Is 18 years old or older or who will turn 18 during the duration of a State contract for services subject to the Living Wage Law; and</text> </paragraph> <paragraph num="(2)"> <text>Spends at least one-half of the employee's time during any work week on a State contract for services subject to the Living Wage Law.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The Living Wage does not apply to an employee who works less than 13 consecutive weeks and full-time on a contract subject to the Living Wage Law.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Employee Health Insurance."> <paragraph num="A."> <text>An employer who reduces the wages paid to an employee based on the employer's share of the health insurance premium, as provided in §18-103(c), State Finance and Procurement Article, Annotated Code of Maryland, may not lower an employee's wage rate below the minimum wage as set in Labor and Employment Article, §3-413, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>An employer who reduces the wages paid to an employee based on the employer's share of the health insurance premium shall comply with the record reporting requirements of Regulation .05 of this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Employee Deferred Compensation Plan."> <paragraph num="A."> <text>An employer may reduce the wage rates paid under State Finance and Procurement Article, §18-103(a), Annotated Code of Maryland, by not more than 50 cents of the hourly cost of the employer's contribution to an employee's deferred compensation plan.</text> </paragraph> <paragraph num="B."> <text>An employer who reduces the wages paid to an employee based on the employer's contribution to an employee's deferred compensation plan may not lower the employee's wage rate below the minimum wage as set in Labor and Employment Article, §3-413, Annotated Code of Maryland.</text> </paragraph> <paragraph num="C."> <text>An employer who reduces an employee's wage rate under §A of this regulation shall comply with the record reporting requirements of Regulation .05 of this chapter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Employer Reporting and Posting Requirements."> <paragraph num="A."> <text>On the day that work on the contract begins, an employer to a State contract for services subject to the Living Wage Law shall file with the Commissioner of Labor and Industry the following:</text> <paragraph num="(1)"> <text>If the employer reduces the wages paid to its employees covered by the Living Wage based upon the employer's share of the health insurance premium:</text> <paragraph num="(a)"> <text>Documentation of the employer's cost and proof of payment for each employee under the employer's health insurance plan;</text> </paragraph> <paragraph num="(b)"> <text>The methodology that the employer uses to determine the hourly amount of health insurance deduction for each employee; and</text> </paragraph> <paragraph num="(c)"> <text>Signature cards or other documentation reflecting that the employee has authorized a deduction for health insurance;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If the employer reduces the wages paid to its employees based upon the employer's contribution to an employee deferred compensation plan:</text> <paragraph num="(a)"> <text>The name of the employee deferred compensation plan;</text> </paragraph> <paragraph num="(b)"> <text>Proof that the deductions from the wages paid to an employee for the employee deferred compensation plan are being deposited in a bona fide deferred compensation plan; and</text> </paragraph> <paragraph num="(c)"> <text>Signature cards or other documentation reflecting that the employee has authorized a deduction for the employee deferred compensation plan;</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>A list of the three most commonly used languages at the worksite;</text> </paragraph> <paragraph num="(4)"> <text>A copy of the Commissioner's “Contractor and Employee Information Form” and the “Subcontractor and Employee Information Form”; and</text> </paragraph> <paragraph num="(5)"> <text>Any other pertinent information that the Commissioner considers necessary.</text> </paragraph> </paragraph> <paragraph num="B."> <text>An employer shall post the Commissioner of Labor and Industry's “Notice to Employees—Wage Requirements” on the day that work on the contract begins. Within 10 days after the posting of the notice, an employer shall submit to the Commissioner of Labor and Industry a copy of the Commissioner's “Certification of Posting the Wage Requirement Notice”.</text> </paragraph> <paragraph num="C."> <text>Subject to the provisions of §G of this regulation, within 14 days after the end of each payroll period, an employer shall submit to the Commissioner of Labor and Industry a complete copy of the following:</text> <paragraph num="(1)"> <text>The employer's payroll records for those employees who are covered under the living wage law pursuant to Regulation .02 of this chapter; and</text> </paragraph> <paragraph num="(2)"> <text>Each subcontractor's payroll records for the employees who are covered under the living wage law pursuant to Regulation .02 of this chapter.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Each payroll record that is submitted pursuant to §C of this regulation shall list the following:</text> <paragraph num="(1)"> <text>The name, address, and telephone number of the contractor or the subcontractor;</text> </paragraph> <paragraph num="(2)"> <text>The name, location, and project number of the job; and</text> </paragraph> <paragraph num="(3)"> <text>Each employee's:</text> <paragraph num="(a)"> <text>Name and at least the last four digits of the employee's Social Security number;</text> </paragraph> <paragraph num="(b)"> <text>Current address;</text> </paragraph> <paragraph num="(c)"> <text>Daily and straight time and any time over 40 hours in one work week;</text> </paragraph> <paragraph num="(d)"> <text>Total straight time and overtime hours for the payroll period;</text> </paragraph> <paragraph num="(e)"> <text>Rate of pay;</text> </paragraph> <paragraph num="(f)"> <text>Amount of deduction for health benefits, if any;</text> </paragraph> <paragraph num="(g)"> <text>Amount of deduction for the employee deferred compensation plan, if any; and</text> </paragraph> <paragraph num="(h)"> <text>Gross wages.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>An employer submitting payroll records pursuant to §C of this regulation shall submit a statement that is signed by the contractor that indicates the following:</text> <paragraph num="(1)"> <text>The payroll records are correct; and</text> </paragraph> <paragraph num="(2)"> <text>The wage rate paid is not less than that required in State Finance and Procurement Article, §18-103, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="F."> <text>The Commissioner may request that an employer periodically submit data, in a form acceptable to the Commissioner, including but not limited to payroll records, for those employees performing work in connection with a State contract for services.</text> </paragraph> <paragraph num="G."> <text>Waivers.</text> <paragraph num="(1)"> <text>Request for a Waiver.</text> <paragraph num="(a)"> <text>An employer may submit to the Commissioner of Labor and Industry a written request for a waiver of the reporting requirements of §§C and F of this regulation.</text> </paragraph> <paragraph num="(b)"> <text>The request for the waiver shall state the reasons why the employer seeks a waiver.</text> </paragraph> <paragraph num="(c)"> <text>The Commissioner may, for good cause shown, waive the reporting requirements of §§C and F of this regulation.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If the Commissioner waives the reporting requirements under this section, the Commissioner retains the right to:</text> <paragraph num="(a)"> <text>Audit the employer at any time;</text> </paragraph> <paragraph num="(b)"> <text>Reinstate the reporting requirements at any time;</text> </paragraph> <paragraph num="(c)"> <text>Change the interval for the submission of payroll records; or</text> </paragraph> <paragraph num="(d)"> <text>Do all of the actions in §G(2)(a)—(c) of this regulation.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>If the Commissioner waives the reporting requirements under this section, the employer is required to post a copy of the waiver notice in the same location as the employer posts the notice to employees of wage requirements.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Employer Record Retention Requirements."> <text>An employer shall retain the following records at the worksite or at a readily accessible location for 3 years:</text> <paragraph num="A."> <text>Payroll records covering work performed at the worksite; and</text> </paragraph> <paragraph num="B."> <text>Copies of health insurance plans and employee deferred compensation plans.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Determination of Tier 1 or Tier 2."> <paragraph num="A."> <text>If services under a contract subject to State Finance and Procurement Article, Title 18, Annotated Code of Maryland, are capable of being performed in both Tier 1 and Tier 2, the head of the unit responsible for a State contract pursuant to State Finance and Procurement Article, §18-102(d), Annotated Code of Maryland, shall assign the tier based upon where the majority of the services are performed.</text> </paragraph> <paragraph num="B."> <text>If the employees who perform the services are not located in the State, the head of the unit responsible for a State contract pursuant to State Finance and Procurement Article, §18-102(d), Annotated Code of Maryland, shall assign the tier based upon where the recipients of the services are located.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Wage Rate Changes During Term of Contract."> <text>An employer subject to State Finance and Procurement Article, Title 18, Annotated Code of Maryland, shall comply with the rate requirements during the initial term of the contract and all subsequent renewal periods including any increases in the wage rate, if adjusted, automatically upon the effective date of the revised wage rate.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Prohibitions."> <text>An employer may not split or subdivide a contract, pay an employee through a third party, or treat an employee as a subcontractor or independent contractor, or assign work to employees to avoid the imposition of any of the requirements of State Finance and Procurement Article, Title 18, Annotated Code of Maryland, or this chapter.</text> </regulation> <regulation prefix="Regulation" num=".10" heading="Rules of Procedure for Hearings."> <paragraph num="A."> <text>This regulation supplements the requirements of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.</text> </paragraph> <paragraph num="B."> <text>The Commissioner of Labor and Industry may delegate the authority to conduct the hearing to the Office of Administrative Hearings.</text> </paragraph> <paragraph num="C."> <text>The administrative law judge may:</text> <paragraph num="(1)"> <text>Administer oaths and affirmations;</text> </paragraph> <paragraph num="(2)"> <text>Rule on procedural matters and offers of proof and receive relevant evidence;</text> </paragraph> <paragraph num="(3)"> <text>Regulate the course of the hearing and the conduct of the parties and their counsel;</text> </paragraph> <paragraph num="(4)"> <text>Examine any witness;</text> </paragraph> <paragraph num="(5)"> <text>Compel the production of records, books, papers, and other evidence; and</text> </paragraph> <paragraph num="(6)"> <text>Take any other appropriate action authorized by statute or regulation.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Hearing Procedure.</text> <paragraph num="(1)"> <text>The administrative law judge shall:</text> <paragraph num="(a)"> <text>Call the title of the case;</text> </paragraph> <paragraph num="(b)"> <text>Explain briefly the purpose and nature of the hearing;</text> </paragraph> <paragraph num="(c)"> <text>Recite any charges, complaints, or other matters involved; and</text> </paragraph> <paragraph num="(d)"> <text>Administer the oath to all persons who are summoned or who intend to testify.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Counsel or any party may be heard on any preliminary matter, exception, or motion, and any stipulation entered into by the parties shall be received.</text> </paragraph> <paragraph num="(3)"> <text>The following exhibits shall be introduced:</text> <paragraph num="(a)"> <text>If the administrative law judge is the Commissioner of Labor and Industry's designee, a copy of the letter designating the administrative law judge to preside at the hearing;</text> </paragraph> <paragraph num="(b)"> <text>A copy of the order for hearing sent to each interested party entitled to receive notice pursuant to State Finance and Procurement Article, §18-107, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(c)"> <text>Information obtained by the Commissioner of Labor and Industry as a result of any investigation pursuant to State Finance and Procurement Article, §18-107, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>The assistant attorney general shall proceed first and shall present evidence of any investigation made by the Commissioner of Labor and Industry.</text> </paragraph> <paragraph num="(5)"> <text>Subject to applicable statutes and rules governing the practice and procedure, each party or counsel representing a party may:</text> <paragraph num="(a)"> <text>Call witnesses;</text> </paragraph> <paragraph num="(b)"> <text>Offer evidence, including rebuttal evidence;</text> </paragraph> <paragraph num="(c)"> <text>Cross-examine any witness that another party or the agency calls; and</text> </paragraph> <paragraph num="(d)"> <text>Present summation and argument.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Determination of Administrative Law Judge.</text> <paragraph num="(1)"> <text>Within 7 days after the conclusion of the hearing, the administrative law judge shall issue a written proposed determination, which includes proposed findings of fact and conclusions of law, and the amount of restitution and liquidated damages to be assessed under State Finance and Procurement Article, §18-108, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(2)"> <text>The proposed determination or an accompanying letter shall notify the parties that they may file written exceptions with, and present arguments to, the Commissioner of Labor and Industry.</text> </paragraph> <paragraph num="(3)"> <text>The administrative law judge shall serve, personally or by mail, a copy of the proposed determination on each party present or represented at the hearing.</text> </paragraph> <paragraph num="(4)"> <text>The proposed determination of the administrative law judge shall become the final order of the Commissioner of Labor and Industry unless exceptions are filed or the Commissioner orders review.</text> </paragraph> </paragraph> <paragraph num="F."> <text>Review.</text> <paragraph num="(1)"> <text>Within 5 days from the postmark date of the proposed determination:</text> <paragraph num="(a)"> <text>The Commissioner of Labor and Industry may order review; or</text> </paragraph> <paragraph num="(b)"> <text>A party adversely affected by the proposed determination may request review in writing to the Commissioner.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>A request for review shall contain a concise statement identifying each portion of the administrative law judge's proposed determination for which a review is requested.</text> </paragraph> <paragraph num="(3)"> <text>A request for review shall be mailed to all other parties to the proceeding.</text> </paragraph> <paragraph num="(4)"> <text>After review of the proceedings with or without a hearing, the Commissioner shall:</text> <paragraph num="(a)"> <text>Issue an order based on findings of fact;</text> </paragraph> <paragraph num="(b)"> <text>Affirm, modify, or vacate the proposed determination, or proposed penalty, or direct other appropriate relief; and</text> </paragraph> <paragraph num="(c)"> <text>Mail copies of the order to all affected parties.</text> </paragraph> </paragraph> </paragraph> <paragraph num="G."> <text>A party aggrieved by a final order of the Commissioner of Labor and Industry may obtain judicial review by filing a written petition with the appropriate circuit court within 30 days of issuance of the final order.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, Title 18, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date:</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.10 adopted as an emergency provision effective October 1, 2007 (34:22 Md. R. 1975); adopted permanently effective February 25, 2008 (35:4 Md. R. 515)</annotation> </annotations> </chapter> <chapter num="11" heading="Prevailing Wage — Contracts for Public Works"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Established locality” means the nearest locality in Maryland which most closely approximates the site of the public work in terms of population, degree of industrialization, and skill of the work force.</text> </paragraph> <paragraph num="(2)"> <text>“Overtime” means:</text> <paragraph num="(a)"> <text>Work performed in excess of 10 hours per calendar day, or work performed on Sundays and legal holidays, including but not limited to:</text> <paragraph num="(i)"> <text>New Year's Day, January 1;</text> </paragraph> <paragraph num="(ii)"> <text>Memorial Day, as observed by either the State or the federal government;</text> </paragraph> <paragraph num="(iii)"> <text>Independence Day, July 4th;</text> </paragraph> <paragraph num="(iv)"> <text>Labor Day, first Monday in September;</text> </paragraph> <paragraph num="(v)"> <text>Thanksgiving Day, fourth Thursday in November; and</text> </paragraph> <paragraph num="(vi)"> <text>Christmas Day, December 25th.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>Payment of overtime to employees for other legal holidays is not prohibited, whether or not the employees are covered by collective bargaining agreements.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“Stop work order” means an order issued by the Commissioner to a contractor or subcontractor that requires the contractor or the subcontractor to stop that contractor’s or that subcontractor’s work at the location identified in the order.</text> </paragraph> <paragraph num="(4)"> <text>“Weighted average rate” for a classification means the rate obtained by adding together the hourly rate paid to each worker in a classification and dividing the total by the number of workers in the classification.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Payroll Records."> <paragraph num="A."> <text>Within 14 days after the end of each payroll period, a contractor shall submit electronically to the Commissioner of Labor and Industry in a format approved by the Commissioner of Labor and Industry a complete copy of:</text> <paragraph num="(1)"> <text>The contractor's payroll records; and</text> </paragraph> <paragraph num="(2)"> <text>Each subcontractor's payroll records.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The Commissioner of Labor and Industry shall be responsible for providing the contractor’s or subcontractor’s payroll records to the contracting public body, as appropriate.</text> </paragraph> <paragraph num="C."> <text>Form. Payroll records shall:</text> <paragraph num="(1)"> <text>Be submitted on the U.S. Department of Labor's Wage and Hour and Public Contracts Division Payroll Form WH-347, or its equivalent;</text> </paragraph> <paragraph num="(2)"> <text>Include either the:</text> <paragraph num="(a)"> <text>Certificate described in State Finance and Procurement Article, §17-220, Annotated Code of Maryland; or</text> </paragraph> <paragraph num="(b)"> <text>Compliance certificate in Payroll Form WH-347, fully completed and executed; and</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Be numbered serially starting with payroll number one.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Contents. Each payroll record shall:</text> <paragraph num="(1)"> <text>Contain only information relevant to the public work project under construction;</text> </paragraph> <paragraph num="(2)"> <text>List:</text> <paragraph num="(a)"> <text>The name, address, and telephone number of the contractor or the subcontractor;</text> </paragraph> <paragraph num="(b)"> <text>The name, location, and project number of the job; and</text> </paragraph> <paragraph num="(c)"> <text>Each employee's:</text> <paragraph num="(i)"> <text>Name and social security number;</text> </paragraph> <paragraph num="(ii)"> <text>Current address, unless previously reported;</text> </paragraph> <paragraph num="(iii)"> <text>Specific work classification;</text> </paragraph> <paragraph num="(iv)"> <text>Daily straight time and overtime hours;</text> </paragraph> <paragraph num="(v)"> <text>Total straight time and overtime hours for the payroll period;</text> </paragraph> <paragraph num="(vi)"> <text>Rate of pay;</text> </paragraph> <paragraph num="(vii)"> <text>Total amount of fringe benefits and the amount of the total that is allocated toward apprenticeship; and</text> </paragraph> <paragraph num="(viii)"> <text>Gross wages;</text> </paragraph> </paragraph> </paragraph> <paragraph num="(3)"> <text>Include for each apprentice, proof that the apprentice is in an apprenticeship program:</text> <paragraph num="(a)"> <text>Registered with the Maryland Apprenticeship and Training Council of the Maryland Department of Labor; and</text> </paragraph> <paragraph num="(b)"> <text>Approved by the Bureau of Apprenticeship and Training of the U.S. Department of Labor.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Payroll records are available for inspection during regular business hours at the Division of Labor and Industry.</text> </paragraph> <paragraph num="F."> <text>Record Keeping.</text> <paragraph num="(1)"> <text>The Commissioner shall keep records, for 3 years, of:</text> <paragraph num="(a)"> <text>Restitution made to underpaid employees; and</text> </paragraph> <paragraph num="(b)"> <text>Liquidated damages assessed in accordance with State Finance and Procurement Article, §§17-201—17-226, Annotated Code of Maryland.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The Commissioner may not close an investigative file until confirmation of requisite payment, if any, is received.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Compilation of Wage Rate Determination."> <paragraph num="A."> <text>The Commissioner shall conduct ongoing surveys to obtain and compile wage rate information.</text> </paragraph> <paragraph num="B."> <text>The Commissioner shall encourage contractors, contractors' associations, labor organizations, public officials, and other interested parties to submit voluntarily data detailing wage rates paid to workers on various types of construction in all localities. The following apply:</text> <paragraph num="(1)"> <text>Rates are determined for various types of construction, such as buildings, bridges, dams, highways, tunnels, sewers, powerlines, railways, airport buildings and runways, wharves, levees, canals, dredging, landing clearing, and excavating;</text> </paragraph> <paragraph num="(2)"> <text>A submission shall state the:</text> <paragraph num="(a)"> <text>Locality;</text> </paragraph> <paragraph num="(b)"> <text>Wage rate or rates paid to a particular trade or craft in that locality; and</text> </paragraph> <paragraph num="(c)"> <text>Type of construction for which the rate or rates are paid.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>The following information shall be considered in making a wage rate determination:</text> <paragraph num="(1)"> <text>Payrolls and certified statements setting forth wage rates paid on other projects, and including the:</text> <paragraph num="(a)"> <text>Names and addresses of the contractors and subcontractors;</text> </paragraph> <paragraph num="(b)"> <text>Nature of the project;</text> </paragraph> <paragraph num="(c)"> <text>Dates, location, and approximate cost of the project;</text> </paragraph> <paragraph num="(d)"> <text>Number of workers employed in each classification on the project; and</text> </paragraph> <paragraph num="(e)"> <text>Wage rates and fringe benefits paid to the workers in each classification;</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Signed collective bargaining agreements that include, upon request by the Commissioner, a certificate from the parties describing the agreement's scope and application; and</text> </paragraph> <paragraph num="(3)"> <text>Public construction wage rates previously determined by federal and local officials pursuant to prevailing wage legislation.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Fringe Benefits.</text> <paragraph num="(1)"> <text>For the purposes of prevailing wage determinations, wage rates include bona fide fringe benefits when the payment of fringe benefits is a prevailing practice in the particular locality.</text> </paragraph> <paragraph num="(2)"> <text>To determine whether payment of fringe benefits is a prevailing practice in the particular locality, the Commissioner shall consider:</text> <paragraph num="(a)"> <text>The wage rate paid to 50 percent or more of the employees in a given construction classification in the locality used to determine the basic hourly rate;</text> </paragraph> <paragraph num="(b)"> <text>If fewer than 50 percent are paid at the same rate, the wage rate paid to 40 percent or more of the employees in a given construction classification in the locality used to determine the basic hourly rate, or if fewer than 40 percent are paid at the same wage rate, the weighted average rate for employees in a given construction classification in the locality used to determine the basic hourly rate;</text> </paragraph> <paragraph num="(c)"> <text>The subject matter of signed collective bargaining agreements, if any.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Scope of Consideration.</text> <paragraph num="(1)"> <text>When a determination is made pursuant to State Finance and Procurement Article, §17-208(a)(1), Annotated Code of Maryland:</text> <paragraph num="(a)"> <text>Only information concerning projects currently under construction or completed within 6 months before the date of the request for the determination shall be considered.</text> </paragraph> <paragraph num="(b)"> <text>Only payrolls for labor used within 12 months before the date of the request for the determination shall be considered.</text> </paragraph> <paragraph num="(c)"> <text>If there was no construction of a similar character in the locality for the year preceding the date of the request for determination, wage rates applicable to the nearest established locality shall be considered.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>When a determination is made pursuant to State Finance and Procurement Article, §17-209, Annotated Code of Maryland, the Commissioner shall consider:</text> <paragraph num="(a)"> <text>Only information concerning projects currently under construction or completed within 6 months before the date of the 60 days notice given before making the determination;</text> </paragraph> <paragraph num="(b)"> <text>Only payrolls for labor used within 12 months before the date of the 60 days notice given before making the determination;</text> </paragraph> <paragraph num="(c)"> <text>If there was no construction of a similar character in the locality for the year preceding the date of the 60 days notice given before making the determination, wage rates applicable to the nearest established locality.</text> </paragraph> </paragraph> </paragraph> <paragraph num="F."> <text>Supplemental Information.</text> <paragraph num="(1)"> <text>If sufficient data is not available to make a determination for those trades and crafts required for the proposed project, a field survey may be conducted in the locality of the proposed project in order to obtain sufficient information upon which to make a wage rate determination.</text> </paragraph> <paragraph num="(2)"> <text>If a field survey is impracticable and available information is inadequate, the Commissioner may hold a hearing to obtain information and data upon which to make a wage rate determination for proposed project.</text> </paragraph> </paragraph> <paragraph num="G."> <text>Supplemental Wage Rate Determination.</text> <paragraph num="(1)"> <text>If a wage rate is not issued for a particular classification or subclassification of workers in a trade or craft, the contractor and subcontractor shall submit, before beginning work, a written statement to the Commissioner listing:</text> <paragraph num="(a)"> <text>The proposed rate of pay and at least three recent jobs of the submitting contractor or subcontractor in the locality of the proposed public work on which the workers in the particular classification or subclassification were paid the proposed rate of pay or less; or</text> </paragraph> <paragraph num="(b)"> <text>If there is not a substantial number of workers engaged in construction of a similar character in the locality, the Commissioner may consider relevant wage data from at least three recent jobs of the submitting contractor or subcontractor in the nearest established locality.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>The wage data and proposed rate of pay are subject to the approval of the Commissioner.</text> </paragraph> </paragraph> <paragraph num="H."> <text>Validity of Wage Rate Determinations.</text> <paragraph num="(1)"> <text>A wage determination initially issued under State Finance and Procurement Article, §17-208(a)(1), Annotated Code of Maryland, for a particular public work in a given locality is effective for 1 year from the date of the determination.</text> </paragraph> <paragraph num="(2)"> <text>If a wage determination will expire before the call for contract bids is issued, the contracting public body shall request a new wage determination not less than 60 days before the call for bids.</text> </paragraph> <paragraph num="(3)"> <text>The Commissioner shall correct any wage determination included in a contract if the wage determination contains clerical errors.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Bona Fide Fringe Benefits."> <paragraph num="A."> <text>If the amount of bona fide fringe benefits paid by an employer exceeds the bona fide fringe benefits rate in a prevailing wage determination, an employer may credit, up to 20 percent of the basic rate, the amount of excess bona fide fringe benefits against the basic wage rate.</text> </paragraph> <paragraph num="B."> <text>If the employer does not have a bona fide fringe benefit amount equal to or more than the prevailing wage bona fide fringe benefit amount, the employer shall pay the difference to the employee in basic wages.</text> </paragraph> <paragraph num="C."> <text>If a credit of bona fide fringe benefits is applied pursuant to this subsection, the total wages shall equal or exceed the prevailing wage rate.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Apprentice Bona Fide Fringe Benefits."> <text>An apprentice shall be paid the full amount of the bona fide fringe benefit in the prevailing wage determination for the applicable classification unless the apprentice’s apprenticeship program as approved by the Maryland Apprenticeship and Training Council provides for the payment of a percentage of the bona fide fringe benefit amount.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Mechanical Systems Service Contracts."> <paragraph num="A."> <text>This regulation applies to the following mechanical systems service contracts:</text> <paragraph num="(1)"> <text>Valued at more than $2,500;</text> </paragraph> <paragraph num="(2)"> <text>Procured by a public body as defined in State Finance and Procurement Article, §17-201(j), Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(3)"> <text>Covering a mechanical system installed as part of a building or public work constructed under the Prevailing Wage Law for a contract bid on or after October 1, 2022.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A contractor performing work on a mechanical systems service contract shall submit certified payroll records pursuant to Regulation .02 of this chapter only for the weeks that work was performed on the service contract.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Rules of Procedure for Hearings."> <paragraph num="A."> <text>This regulation supplements the requirements of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 09.01.02 and 09.01.03.</text> </paragraph> <paragraph num="B."> <text>The hearing officer shall be the Commissioner of Labor and Industry, or the Commissioner's designee.</text> </paragraph> <paragraph num="C."> <text>The hearing officer may:</text> <paragraph num="(1)"> <text>Administer oaths and affirmations;</text> </paragraph> <paragraph num="(2)"> <text>Rule on procedural matters and offers of proof and receive relevant evidence;</text> </paragraph> <paragraph num="(3)"> <text>Regulate the course of the hearing and the conduct of the parties and their counsel;</text> </paragraph> <paragraph num="(4)"> <text>Examine any witness;</text> </paragraph> <paragraph num="(5)"> <text>Issue subpoenas; and</text> </paragraph> <paragraph num="(6)"> <text>Take any other appropriate action authorized by statute or regulation.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Hearing Procedure.</text> <paragraph num="(1)"> <text>The hearing officer shall:</text> <paragraph num="(a)"> <text>Call the title of the case;</text> </paragraph> <paragraph num="(b)"> <text>Explain briefly the purpose and nature of the hearing;</text> </paragraph> <paragraph num="(c)"> <text>Recite any charges, complaints, or other matters involved; and</text> </paragraph> <paragraph num="(d)"> <text>Administer the oath to all persons who are summoned or who intend to testify.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Counsel or any party may be heard on any preliminary matter, exception, or motion, and any stipulation entered into by the parties shall be received.</text> </paragraph> <paragraph num="(3)"> <text>The following exhibits shall be introduced:</text> <paragraph num="(a)"> <text>If the hearing officer is the Commissioner's designee, a copy of the letter designating the hearing officer to preside at the hearing;</text> </paragraph> <paragraph num="(b)"> <text>If the hearing involves a petition for review:</text> <paragraph num="(i)"> <text>A copy of the verified petition filed with the Commissioner;</text> </paragraph> <paragraph num="(ii)"> <text>A copy of the notice of hearing sent to each party entitled to receive notice pursuant to State Finance and Procurement Article §17-211, Annotated Code of Maryland</text> </paragraph> <paragraph num="(iii)"> <text>A copy of the protested prevailing wage determination;</text> </paragraph> <paragraph num="(iv)"> <text>Information considered in making the wage rate determination;</text> </paragraph> <paragraph num="(v)"> <text>Wage data or collective bargaining agreements submitted by the petitioner that were not produced prior to the original wage rate determination, upon a showing of good cause why such evidence was not produced in a timely manner;</text> </paragraph> <paragraph num="(vi)"> <text>Recent wage data or wage rates from collective bargaining agreements submitted by the petitioner that became available or effective after the date of the original wage rate determination and before the date of the hearing; and</text> </paragraph> <paragraph num="(vii)"> <text>Information obtained by the Commissioner as a result of subsequent investigations pursuant to State Finance and Procurement Article, §17-211, Annotated Code of Maryland;</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>If the hearing concerns the applicability of the Prevailing Wage Subtitle, State Finance and Procurement Article, Annotated Code of Maryland, to a project:</text> <paragraph num="(i)"> <text>A copy of the request for determination filed with the Commissioner;</text> </paragraph> <paragraph num="(ii)"> <text>A copy of the notice of hearing sent to the petitioner, the contracting public body, the recognized collective bargaining agent for the particular classification of workers involved, and each person entitled to receive notice pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(iii)"> <text>Information obtained by the Commissioner as a result of a subsequent investigation pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland;</text> </paragraph> </paragraph> <paragraph num="(d)"> <text>If the hearing involves an alleged violation of the Prevailing Wage Subtitle, State Finance and Procurement Article, §§17-201—17-226, Annotated Code of Maryland:</text> <paragraph num="(i)"> <text>A copy of the notice of hearing sent to the contracting public body, the recognized collective bargaining agent for the particular workers involved, and to each person entitled to notice pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland, and</text> </paragraph> <paragraph num="(ii)"> <text>Information obtained by the Commissioner as a result of the subsequent investigation pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(4)"> <text>The Assistant Attorney General shall proceed first and shall present evidence of any investigation made by the Commissioner of Labor and Industry.</text> </paragraph> <paragraph num="(5)"> <text>Subject to applicable statutes and rules governing the practice of law, each party or counsel representing a party may:</text> <paragraph num="(a)"> <text>Call witnesses;</text> </paragraph> <paragraph num="(b)"> <text>Offer evidence, including rebuttal evidence;</text> </paragraph> <paragraph num="(c)"> <text>Cross-examine any witness that another party or the agency calls; and</text> </paragraph> <paragraph num="(d)"> <text>Present summation and argument.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Determination of Hearing Officer.</text> <paragraph num="(1)"> <text>The hearing officer shall issue a written determination, which includes proposed findings of fact and conclusions of law, and a proposed order making disposition of the proceedings.</text> </paragraph> <paragraph num="(2)"> <text>The hearing officer shall serve a copy of the determination on each party present or represented at the hearing.</text> </paragraph> <paragraph num="(3)"> <text>Unless exceptions to a hearing officer's proposed determination are filed with the Commissioner within 10 working days from the date of the determination, the decision of the hearing officer shall become the final order of the Commissioner.</text> </paragraph> </paragraph> <paragraph num="F."> <text>A party aggrieved by a final order of the Commissioner may obtain judicial review by filing a written petition with the appropriate circuit court within 30 days of issuance of final order.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Commissioner’s Investigation."> <text>If the Commissioner receives a complaint that an employee under a public work contract was paid less than the prevailing wage rate for that employee’s classification, the Commissioner shall investigate the complaint and attempt to resolve the complaint informally within 90 days of receipt of the complaint.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Commissioner’s Investigation."> <text>If the Commissioner receives a complaint that an employee under a public work contract was paid less than the prevailing wage rate for that employee’s classification, the Commissioner shall investigate the complaint and attempt to resolve the complaint informally within 90 days of receipt of the complaint.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§17-202, 17-204(a), and 17-221, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.06 repealed and new Regulations .01—.04 adopted effective October 17, 1988 (15:21 Md. R. 2469)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective July 12, 1999 (26:14 Md. R. 1083)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02C amended effective February 9, 1998 (25:3 Md. R. 146)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03E amended effective January 23, 1989 (16:1 Md. R. 72)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 adopted effective April 18, 2011 (38:31 Md. R. 509)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective June 25, 2012 (39:12 Md. R. 745)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective November 26, 2012 (39:23 Md. R. 1532)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05D amended effective September 3, 2012 (39:17 Md. R. 1149)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective October 14, 2013 (40:20 Md. R. 1653)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective May 15, 2023 (50:9 Md. R. 379)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective May 15, 2023 (50:9 Md. R. 379)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective January 22, 2024 (51:1 Md. R. 16)</annotation> </annotations> </chapter> <chapter num="12" heading="State Apprenticeship Training Fund"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Approved apprenticeship program” means an apprenticeship program or an organization with an apprenticeship program which has been registered with, and approved by, the Maryland Apprenticeship and Training Council or the United States Department of Labor.</text> </paragraph> <paragraph num="(2)"> <text>“Commissioner” means the Commissioner of Labor and Industry.</text> </paragraph> <paragraph num="(3)"> <text>“Covered craft” means a classification of workers listed in the prevailing wage determination applicable to a prevailing wage project.</text> </paragraph> <paragraph num="(4)"> <text>“Fund” means the State Apprenticeship Training Fund.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Hourly Contribution Rate."> <paragraph num="A."> <text>If a contractor participates in an apprenticeship training program for each covered craft, the contractor satisfies their obligation under State Finance and Procurement Article, §17-603(a)(1), Annotated Code of Maryland, by making contributions of at least 25 cents per person per hour.</text> </paragraph> <paragraph num="B."> <text>If a subcontractor participates in an apprenticeship training program for each covered craft, the subcontractor satisfies their obligation under State Finance and Procurement Article, §17-604(a)(1), Annotated Code of Maryland, by making contributions of at least 25 cents per person per hour.</text> </paragraph> <paragraph num="C."> <text>Contractors and subcontractors that do not participate in an apprenticeship training program shall pay at least 25 cents per person per hour for each employee in each covered craft on the prevailing wage project to a registered apprenticeship program, an organization that has a registered apprenticeship program, or the Fund.</text> </paragraph> <paragraph num="D."> <text>Contractors and subcontractors who make contributions to the Fund shall do so on a monthly basis.</text> </paragraph> <paragraph num="E."> <text>Contractors and subcontractors who make contributions to a registered apprenticeship program or an organization that has a registered apprenticeship program shall make contributions on a monthly basis or consistent with a collective bargaining agreement or other contractual arrangement.</text> </paragraph> <paragraph num="F."> <text>If there is a prevailing wage determination that includes a fringe benefit contribution for apprenticeship that exceeds 25 cents per hour, a contractor or subcontractor that makes contributions to the Fund shall pay to the employee wages in the amount that the fringe benefit contribution for apprenticeship exceeds 25 cents per hour.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Contractor and Subcontractor Registration."> <paragraph num="A."> <text>Contractors performing work on a prevailing wage project shall complete the registration process at the Department’s website.</text> </paragraph> <paragraph num="B."> <text>Subcontractors who are performing work valued at $100,000 or more on a prevailing wage project shall complete the registration process at the Department’s website.</text> </paragraph> <paragraph num="C."> <text>Prior to the commencement of work, a registered contractor or registered subcontractor shall log onto the Department’s website and complete the required project log information including:</text> <paragraph num="(1)"> <text>The prevailing wage project number;</text> </paragraph> <paragraph num="(2)"> <text>Contract value;</text> </paragraph> <paragraph num="(3)"> <text>Identification of subcontractors to perform work on the project and subcontract value amount;</text> </paragraph> <paragraph num="(4)"> <text>Designation of the program or Fund where the contractor or subcontractor will make contributions; and</text> </paragraph> <paragraph num="(5)"> <text>Any other information that the Commissioner requires.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Contractor and Subcontractor Notification to Subcontractors."> <paragraph num="A."> <text>Contractors and subcontractors who hire subcontractors performing work valued at $100,000 or more on a public work contract subject to the Maryland Prevailing Wage Law shall provide the subcontractors with written notice of the following requirements:</text> <paragraph num="(1)"> <text>Subcontractors shall complete the registration process at the Division of Labor and Industry’s website at https://www.dllr.state.md.us/prevwage;</text> </paragraph> <paragraph num="(2)"> <text>Prior to the commencement of work, a subcontractor shall log onto the Department’s website and complete the required project log information including:</text> <paragraph num="(a)"> <text>The prevailing wage project number;</text> </paragraph> <paragraph num="(b)"> <text>Contract value;</text> </paragraph> <paragraph num="(c)"> <text>Identification of all subcontractors to perform work on the project and subcontract value amount;</text> </paragraph> <paragraph num="(d)"> <text>Designation of the program or Fund where the subcontractor will make contributions; and</text> </paragraph> <paragraph num="(e)"> <text>Any other information that the Commissioner requires; and</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>Subcontractors performing work on a prevailing wage project valued at $100,000 or more are required to make payments to approved apprenticeship programs or to the Fund for each employee employed in classifications listed on the prevailing wage determination.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Contractors and subcontractors shall retain a copy of the written notice required in §A of this regulation that was provided to covered subcontractors for inspection and review by the Commissioner for 3 years after the completion of their work on a public work project.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Contractor and Subcontractor Obligations Related to Contributions."> <text>Contractors and subcontractors are required to:</text> <paragraph num="A."> <text>Indicate on their prevailing wage payroll record their contributions under State Finance and Procurement Article, §17-603 or 17-604, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="B."> <text>Certify that the contributions were received by an approved apprenticeship program or the Fund.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Notification to Division of Labor and Industry of Changes to Designated Approved Apprenticeship Programs or Fund."> <paragraph num="A."> <text>Contractors and subcontractors shall log onto the Department’s website and indicate each approved apprenticeship program or the Fund to which it will make contributions.</text> </paragraph> <paragraph num="B."> <text>If a contractor or subcontractor intends to change a designation, it shall log onto the Department’s website to indicate the change in designation 30 days prior to that change.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Approved Apprenticeship Program Obligations."> <paragraph num="A."> <text>Upon notice from the Division of Labor and Industry that the approved apprenticeship program has been designated for contributions by a contractor or subcontractor, an approved apprenticeship program shall register on the Department’s website.</text> </paragraph> <paragraph num="B."> <text>An approved apprenticeship program shall complete the requested information on contributions received from contractors and subcontractors for each covered craft for each prevailing wage project at the Department's website on or before the last day of the month immediately following each calendar quarter.</text> </paragraph> <paragraph num="C."> <text>Certify that all funds received are used solely for the purpose of improving or expanding apprenticeship training in the State.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Audit of an Approved Apprenticeship Program."> <text>The Commissioner may require an independent audit by a certified public accountant of an approved apprenticeship program to verify that contributions received are used consistent with this subtitle.</text> </regulation> <regulation prefix="Regulation" num=".09" heading="Enforcement Procedures."> <paragraph num="A."> <text>The Commissioner may investigate whether State Finance and Procurement Article, Title 17, Subtitle 6, Annotated Code of Maryland, has been violated:</text> <paragraph num="(1)"> <text>On the Commissioner’s own initiative;</text> </paragraph> <paragraph num="(2)"> <text>On receipt of a written complaint; or</text> </paragraph> <paragraph num="(3)"> <text>On referral from another State agency.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The Commissioner may require a contractor, subcontractor, or an approved apprenticeship program to produce records as part of its investigation.</text> </paragraph> <paragraph num="C."> <text>The Commissioner may enter a place of business to:</text> <paragraph num="(1)"> <text>Interview individuals; or</text> </paragraph> <paragraph num="(2)"> <text>Review and copy records.</text> </paragraph> </paragraph> <paragraph num="D."> <text>If after an investigation, the Commissioner determines that there is a violation of State Finance and Procurement Article, Title 17, Subtitle 6, Annotated Code of Maryland, or a regulation adopted to carry out the title, the Commissioner shall issue an administrative charge that shall:</text> <paragraph num="(1)"> <text>Describe in detail the nature of the alleged violation;</text> </paragraph> <paragraph num="(2)"> <text>Cite the provision of law or regulation that is alleged to have been violated; and</text> </paragraph> <paragraph num="(3)"> <text>State the penalty, if any.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Within a reasonable amount of time after the issuance of the administrative charge, the Commissioner shall send a copy of the administrative charge to the alleged violator by certified mail with notice of the opportunity to request a hearing.</text> </paragraph> <paragraph num="F."> <text>Within 15 days after the alleged violator receives the administrative charge, the employer may submit a written request for a hearing on the administrative charge and proposed penalty.</text> </paragraph> <paragraph num="G."> <text>If a hearing is not requested within 15 days, the administrative charge, including any penalties, shall become a final order of the Commissioner.</text> </paragraph> <paragraph num="H."> <text>If there is a request for a hearing, the Commissioner may delegate the hearing to the Office of Administrative Hearings in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.</text> </paragraph> <paragraph num="I."> <text>A proposed decision of an administrative law judge shall become a final order of the Commissioner unless, within 15 days of the issuance of the proposed decision:</text> <paragraph num="(1)"> <text>The Commissioner orders review of the proposed decision; or</text> </paragraph> <paragraph num="(2)"> <text>The alleged violator submits to the Commissioner a written request for review of the proposed decision.</text> </paragraph> </paragraph> <paragraph num="J."> <text>After review of the proposed decision under §I of this regulation, with or without a hearing on the record, the Commissioner shall issue an order that affirms, modifies, or vacates the proposed decision</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§17-603—17-606, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 2013 (40:8 Md. R. 724)</annotation> </annotations> </chapter> <chapter num="13" heading="State Apprenticeship Training Fund — Capital Construction Projects"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Covered contract” has the meaning stated in State Finance and Procurement Article, §17-6A-01(c), Annotated Code of Maryland.</text> </paragraph> <paragraph num="(2)"> <text>“Department” means the Maryland Department of Labor.</text> </paragraph> <paragraph num="(3)"> <text>“Fund” has the meaning set forth in State Finance and Procurement Article, §17-6A-01(e), Annotated Code of Maryland.</text> </paragraph> <paragraph num="(4)"> <text>“Registered apprenticeship program” means an apprenticeship program which has been registered with, and approved by, the Maryland Apprenticeship and Training Council or the United States Department of Labor and is operating within the State of Maryland.</text> </paragraph> <paragraph num="(5)"> <text>“Secretary” means the Secretary of the Maryland Department of Labor.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Applicability."> <paragraph num="A."> <text>Each contractor or subcontractor awarded a covered contract defined in Regulation .01 of this chapter shall:</text> <paragraph num="(1)"> <text>Both:</text> <paragraph num="(a)"> <text>Be affiliated with a registered apprenticeship program; and</text> </paragraph> <paragraph num="(b)"> <text>Use apprentices from registered apprenticeship programs for each craft or trade in which the contractor or subcontractor employs individuals to complete the contract; or</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>Either:</text> <paragraph num="(a)"> <text>Make payments to the Fund; or</text> </paragraph> <paragraph num="(b)"> <text>Make payments to a registered apprenticeship program.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>This title is not applicable to a contractor or subcontractor if there are no registered apprenticeship programs for the craft or trade in which the contractor or subcontractor employs one or more individuals to complete the covered contract.</text> </paragraph> <paragraph num="C."> <text>This title is not applicable to any capital construction projects that commenced, in whole or in part, prior to the effective date of these regulations.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Hourly Contribution Rate."> <paragraph num="A."> <text>Contractors and subcontractors that elect to make payments as described in Regulation .02 of this chapter shall pay 25 cents per individual per hour, for each employee who is employed to complete the contract, to:</text> <paragraph num="(1)"> <text>A registered apprenticeship program; or</text> </paragraph> <paragraph num="(2)"> <text>The Fund.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Payments described in §A of this regulation shall be made on a monthly basis.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Registration."> <paragraph num="A."> <text>Contractors performing work on a covered contract shall complete the registration process at the Department’s website.</text> </paragraph> <paragraph num="B."> <text>Prior to the commencement of work, a registered contractor shall log onto Department’s website and complete the required project log information, including, but not limited to, the following:</text> <paragraph num="(1)"> <text>Identification of the capital project or grant;</text> </paragraph> <paragraph num="(2)"> <text>Contract value;</text> </paragraph> <paragraph num="(3)"> <text>Identification of subcontractors with contracts valued at $500,000 or more to perform work on the project and subcontract value amount;</text> </paragraph> <paragraph num="(4)"> <text>Identification of the affiliated registered apprenticeship program;</text> </paragraph> <paragraph num="(5)"> <text>Certification that the contractor is employing registered apprentices from the registered apprenticeship program to complete the contract; and</text> </paragraph> <paragraph num="(6)"> <text>Any other information that the Secretary requires.</text> </paragraph> </paragraph> <paragraph num="C."> <text>In the event the contractor is not affiliated with a registered apprenticeship program and is not able to comply with the certification requirement set forth in §B(5) of this regulation, the contractor shall designate the entity, either a registered apprenticeship program or the Fund, to which the contractor will make contributions, estimate the number of employees per craft and trade for which there is a registered apprenticeship program, and estimate the number of hours they will be employed to complete the contract.</text> </paragraph> <paragraph num="D."> <text>Subcontractors shall comply with the same registration requirements as set forth in this regulation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Notification."> <paragraph num="A."> <text>Contractors who hire subcontractors performing work valued at $500,000 or more on a covered contract, shall provide the subcontractors with written notice of the following requirements:</text> <paragraph num="(1)"> <text>Subcontractors performing work valued at $500,000 or more on a covered contract shall complete the registration process on the Department’s website; and</text> </paragraph> <paragraph num="(2)"> <text>Prior to the commencement of work, a subcontractor shall log onto the Department’s website and complete the required project log information including:</text> <paragraph num="(a)"> <text>Identification of the capital project or grant;</text> </paragraph> <paragraph num="(b)"> <text>Contract value;</text> </paragraph> <paragraph num="(c)"> <text>Identification of subcontractors with contracts valued at $500,000 or more to perform work on the project and subcontract value amount;</text> </paragraph> <paragraph num="(d)"> <text>Identification of the affiliated registered apprenticeship program;</text> </paragraph> <paragraph num="(e)"> <text>Certification that the subcontractor is employing registered apprentices from that program to complete the contract;</text> </paragraph> <paragraph num="(f)"> <text>If electing to make payments under Regulation .02A(2) of this chapter, designation of the entity, either a registered apprenticeship program or the Fund, to which the subcontractor will make contributions; and</text> </paragraph> <paragraph num="(g)"> <text>Any other information that the Secretary requires.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>Contractors shall retain a copy of the written notice required in §A of this regulation that was provided to covered subcontractors for inspection and review by the Secretary for 3 years after the completion of their work on a covered contract.</text> </paragraph> <paragraph num="C."> <text>In the event the contractor or subcontractor is not affiliated with a registered apprenticeship program and is not able to comply with the certification requirement set forth in §A(2) of this regulation, the contractor or subcontractor shall estimate the number of employees per craft and trade for which there is a registered apprenticeship program and the number of hours they will be employed to complete the contract.</text> </paragraph> <paragraph num="D."> <text>Subcontractors shall comply with the same notice requirements as set forth in this regulation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Contractor’s and Subcontractor’s Obligations Related to Contributions."> <text>Contractors and subcontractors who elect to make contributions to a registered apprenticeship program or the Fund are required to comply with the following requirements:</text> <paragraph num="A."> <text>Indicate on their capital construction payroll records their contributions under State Finance and Procurement Article, §17-6A- 03 or §17-6A-04, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="B."> <text>Certify to the Secretary, or the Secretary’s designee, on a quarterly basis, that the contributions were sent to a registered apprenticeship program or to the Fund.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Registered Apprenticeship Program’s Obligations Related to Contributions."> <text>Upon request from contractors or subcontractors, registered apprenticeship programs shall provide written documentation to the contractors or subcontractors verifying their affiliation with the applicable program.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Notification of Intended Changes to Designated Registered Apprenticeship Programs or the Fund."> <paragraph num="A."> <text>Thirty days prior to making a change in the designation of applicable apprenticeship or contribution to the Fund, a contractor or subcontractor shall log onto the Department’s website to indicate the intended change.</text> </paragraph> <paragraph num="B."> <text>A contractor or subcontractor making payments to the Fund may make a written request to the Secretary that the contributions be directed to a specific pre-apprenticeship or workforce development program.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Registered Apprenticeship Program’s Obligations."> <paragraph num="A."> <text>Upon notice from the Department’s Division of Workforce Development and Adult Learning that the registered apprenticeship program has been designated for contributions by a contractor or subcontractor, a registered apprenticeship program shall register on the Department’s website.</text> </paragraph> <paragraph num="B."> <text>A registered apprenticeship program shall comply with the following requirements:</text> <paragraph num="(1)"> <text>Complete the requested information on contributions received from contractors and subcontractors for each contract at the Department’s website on or before the last day of the month immediately following each calendar quarter; and</text> </paragraph> <paragraph num="(2)"> <text>Certify that all funds received are used solely for the purpose of improving or expanding apprenticeship training in the State.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Audit of a Registered Apprenticeship Program."> <text>The Secretary, or the Secretary’s designee, may require an independent audit by a certified public accountant of a registered apprenticeship program to verify that contributions received from contractors and subcontractors are used consistently with requirements set forth in State Finance and Procurement Article, §§17-6A-01—17-6A-06, Annotated Code of Maryland and this chapter.</text> </regulation> <regulation prefix="Regulation" num=".11" heading="Enforcement Procedures."> <paragraph num="A."> <text>The Secretary, or the Secretary’s designee, may investigate whether State Finance and Procurement Article, Title 17, Subtitle 6A, Annotated Code of Maryland, has been violated:</text> <paragraph num="(1)"> <text>On the Secretary’s, or the Secretary’s designee, own initiative;</text> </paragraph> <paragraph num="(2)"> <text>On receipt of a written complaint; or</text> </paragraph> <paragraph num="(3)"> <text>On referral from another State agency.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The Secretary, or the Secretary’s designee, may require a contractor, subcontractor, or registered apprenticeship program to produce records as part of its investigation.</text> </paragraph> <paragraph num="C."> <text>The Secretary, or the Secretary’s designee, may enter a place of business to:</text> <paragraph num="(1)"> <text>Interview individuals; or</text> </paragraph> <paragraph num="(2)"> <text>Review and copy records.</text> </paragraph> </paragraph> <paragraph num="D."> <text>If after an investigation the Secretary, or the Secretary’s designee, determines that there is a violation of State Finance and Procurement Article, Title 17, Subtitle 6A, Annotated Code of Maryland, or a regulation adopted to carry out the title, the Secretary shall issue an administrative charge that shall:</text> <paragraph num="(1)"> <text>Describe in detail the nature of the alleged violation;</text> </paragraph> <paragraph num="(2)"> <text>Cite the provision of law or regulation that is alleged to have been violated; and</text> </paragraph> <paragraph num="(3)"> <text>State the penalty to be assessed, if any.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Within a reasonable amount of time after the issuance of the administrative charge, the Secretary shall send a copy of the administrative charge to the alleged violator by regular mail with notice of the opportunity to request a hearing.</text> </paragraph> <paragraph num="F."> <text>Within 30 days of the postmark of the administrative charge sent to the alleged violator, the alleged violator may submit a written request for a hearing on the administrative charge and proposed penalty.</text> </paragraph> <paragraph num="G."> <text>If a hearing is not requested within 30 days of the postmark of the administrative charge sent to the alleged violator, the administrative charge, including any penalties, shall become a final order of the Secretary.</text> </paragraph> <paragraph num="H."> <text>If there is a request for a hearing, the Secretary may delegate the hearing to the Office of Administrative Hearings in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.</text> </paragraph> <paragraph num="I."> <text>A proposed decision of an administrative law judge shall become a final order of the Secretary unless, within 15 days of the issuance of the proposed decision:</text> <paragraph num="(1)"> <text>The Secretary orders review of the proposed decision; or</text> </paragraph> <paragraph num="(2)"> <text>The alleged violator submits to the Secretary a written request for review of the proposed decision.</text> </paragraph> </paragraph> <paragraph num="J."> <text>After review of the proposed decision under §I of this regulation, with or without a hearing on the record, the Secretary shall issue an order that affirms, modifies, or vacates the proposed decision.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§17-6A-01—17-6A-06, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.10 recodified from COMAR 21.11.13 to COMAR 21.11.14 effective December 28, 2020 (47:26 Md. R. 1108)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.11 adopted effective December 28, 2020 (47:26 Md. R. 1108)</annotation> </annotations> </chapter> <chapter num="14" heading="Veteran-Owned Small Business Enterprises"> <regulation prefix="Regulation" num=".01" heading="General — Purpose."> <text>This chapter provides that maximum contracting opportunities be extended to veteran-owned small business enterprises, as both prime contractors and subcontractors, and establishes that:</text> <paragraph num="A."> <text>Each procurement agency shall structure its procedures for making procurements to try to achieve an overall minimum of 3 percent of the unit's total dollar value of all procurement contracts made directly or indirectly with veteran-owned small business enterprises; and</text> </paragraph> <paragraph num="B."> <text>The requirements of this chapter may be applied to individual task orders competitively procured among contractors under a master contract as provided in COMAR 21.05.13.05.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Definitions."> <paragraph num="A."> <text>In this chapter, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Certification” means a determination by the certification agency through the procedures outlined in this chapter that a legal entity is a veteran-owned small business enterprise (VSBE) for purposes of these regulations.</text> </paragraph> <paragraph num="(2)"> <text>“Certification agency” means the Governor’s Office of Small, Minority & Women Business Affairs (GOSBA).</text> </paragraph> <paragraph num="(3)"> <text>“Certified VSBE” means a veteran-owned small business that holds a certification issued by the certification agency.</text> </paragraph> <paragraph num="(4)"> <text>“Control” means the exercise of the power to manage and operate a business enterprise.</text> </paragraph> <paragraph num="(5)"> <text>“Database” means the State’s Internet-based electronic procurement system.</text> </paragraph> <paragraph num="(6)"> <text>“Procurement agency” has the meaning stated in COMAR 21.01.02.01B.</text> </paragraph> <paragraph num="(7)"> <text>“Vendor” has the meaning stated in COMAR 21.01.02.01B.</text> </paragraph> <paragraph num="(8)"> <text>“Verification” means a business owner that is verified by the Maryland Department of Veterans Affairs or the U.S. Small Business Administration as a veteran.</text> </paragraph> <paragraph num="(9)"> <text>“Veteran” means an individual who is verified as having served on active duty in the armed forces of the United States, other than for training, and was discharged or released under conditions other than dishonorable.</text> </paragraph> <paragraph num="(10)"> <text>“Veteran-owned small business enterprise (VSBE)” means a for-profit business, other than a joint venture, that:</text> <paragraph num="(a)"> <text>Meets the size standards adopted by the U.S. Small Business Administration in 13 CFR §121.201 and any subsequent revision of that regulation; and</text> </paragraph> <paragraph num="(b)"> <text>Is at least 51 percent owned by one or more individuals who:</text> <paragraph num="(i)"> <text>Are veterans; and</text> </paragraph> <paragraph num="(ii)"> <text>Control the management and daily operations of the business.</text> </paragraph> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Scope."> <paragraph num="A."> <text>Except to the extent that any provisions conflict with federal law, or as provided in §B of this regulation, this chapter applies to every procurement of supplies, services, maintenance, construction, construction-related services, architectural services, and engineering services by a procurement agency.</text> </paragraph> <paragraph num="B."> <text>Small procurements are not subject to this chapter. These procurements shall be made in accordance with COMAR 21.05.07.</text> </paragraph> <paragraph num="C."> <text>Procurement agencies shall use the Database as the primary resource to identify certified VSBEs when considering the application of a VSBE participation goal. Procurement agencies may also utilize the U.S. Small Business Administration and any other veteran resource or database to assist in identifying potential veteran vendors when considering the application of a VSBE participation goal.</text> </paragraph> <paragraph num="D."> <text>Nothing in this chapter is to be construed to relieve a procurement agency from attempting to achieve the State’s goal for certified VSBE participation.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Procurement Agency Responsibility."> <paragraph num="A."> <text>Each procurement agency shall make its procurements in accordance with this chapter.</text> </paragraph> <paragraph num="B."> <text>The Department of General Services, in executing its responsibility over procurement of information technology equipment and related services, shall require procurement agencies to make those procurements in compliance with this chapter.</text> </paragraph> <paragraph num="C."> <text>When delegating procurement authority to procurement agencies, the Department of General Services shall condition the delegation on compliance with this chapter.</text> </paragraph> <paragraph num="D."> <text>Procurement agencies shall use the forms and affidavits developed by the Governor’s Office of Small, Minority, and Women Business Affairs for reporting procedures required by this title.</text> </paragraph> <paragraph num="E."> <text>Before awarding a contract that includes a VSBE goal, the procurement officer shall use the Database to confirm that the VSBE vendor named to fulfill an established VSBE contract goal is certified by the Governor's Office of Small, Minority & Women Business Affairs (GOSBA).</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="VSBE Liaison."> <text>The head of each procurement agency shall designate an employee to be a VSBE liaison officer in the administration of that agency’s VSBE Program. The VSBE liaison officer shall be a high-level employee reporting directly to a Secretary, Deputy Secretary, or head of a procurement agency. The VSBE liaison officer is responsible for coordinating agency outreach efforts to the veteran business community, reviewing agency contracting procedures to ensure compliance with this chapter, assisting in the resolution of contracting issues, and for submitting required VSBE Program reports or information.</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Reporting."> <paragraph num="A."> <text>Each procurement agency shall make a report annually within 90 days following the close of the fiscal year to the Governor’s Office of Small, Minority & Women Business Affairs that includes:</text> <paragraph num="(1)"> <text>The total number, value, and procurement category of its procurements from State-certified VSBEs as prime contractors, and separately as subcontractors;</text> </paragraph> <paragraph num="(2)"> <text>The number of waivers granted pursuant to Regulation .09 of this chapter; and</text> </paragraph> <paragraph num="(3)"> <text>An evaluation by the procurement agency of the success of its VSBE Program, which shall include a brief description of the procurement agency’s outreach efforts to VSBE prime and VSBE subcontractors.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Each procurement agency shall furnish any other information or periodic reports requested by the Governor’s Office of Small, Minority & Women Business Affairs in connection with its VSBE procurements, or any other matters related to the administration, effectiveness, or continuation of the VSBE Program.</text> </paragraph> <paragraph num="C."> <text>The Governor’s Office of Small, Minority & Women Business Affairs shall prepare an annual report summarizing VSBE participation throughout the State, for publication on its website as well as submission by the end of each calendar year to the Board of Public Works, to the Legislative Policy Committee of the Maryland General Assembly, and to each procurement agency.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Procurement Solicitations."> <paragraph num="A."> <text>To attain the overall and specific goals under Regulation .01A of this chapter, procurement agencies shall set, where appropriate, an overall VSBE goal, expressed as a percentage of the dollar value of the contract.</text> </paragraph> <paragraph num="B."> <text>Goal Setting Generally.</text> <paragraph num="(1)"> <text>A procurement agency shall assess the potential for VSBE prime and subcontractor participation in each contract and estimate the amount of participation if any before initiating the procurement.</text> </paragraph> <paragraph num="(2)"> <text>Some factors which may be used to determine the level of VSBE participation include:</text> <paragraph num="(a)"> <text>The extent to which direct solicitation at the prime contract level, subcontracting, or a combination of both is determined most likely to result in maximum VSBE participation in the contract;</text> </paragraph> <paragraph num="(b)"> <text>The number of certified VSBEs listed in the Database in addition to veteran-owned firms identified by the U.S. Small Business Administration and other resources and databases used to identify veteran-owned firms for a particular supply, service, maintenance, construction, construction-related service, architectural service, or engineering service;</text> </paragraph> <paragraph num="(c)"> <text>The geographical proximity, when relevant, of VSBEs to the location of the work to be performed; and</text> </paragraph> <paragraph num="(d)"> <text>The feasibility of subcontracting opportunities given the nature and extent of the proposed contract.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>VSBE Subcontracting Provisions.</text> <paragraph num="(1)"> <text>Solicitation Content. The solicitation shall contain provisions requiring bidders or offerors to:</text> <paragraph num="(a)"> <text>Identify specific work categories within the scope of the procurement appropriate for subcontracting;</text> </paragraph> <paragraph num="(b)"> <text>Conduct outreach through the Database or utilize the U.S. Small Business Administration and other resources and databases to assist in identifying potential veteran vendors. The veteran-owned vendor shall be a certified VSBE at the time of submission of the bid or proposal.</text> </paragraph> <paragraph num="(c)"> <text>Solicit certified VSBEs and veteran-owned firms in writing at least 10 days before bids or proposals are due, describing the identified work categories and providing instructions on how to bid on the subcontracts;</text> </paragraph> <paragraph num="(d)"> <text>Attempt to make personal contact with the VSBEs solicited and to document these attempts;</text> </paragraph> <paragraph num="(e)"> <text>Assist VSBEs to fulfill, or to seek waiver of, bonding requirements; and</text> </paragraph> <paragraph num="(f)"> <text>Attempt to attend prebid or other meetings the procurement agency schedules to publicize contracting opportunities to VSBEs.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If a solicitation contains an MBE goal and a VSBE goal, participation by a subcontractor dually-certified as an MBE and a VSBE may be counted toward meeting both the MBE and VSBE contract goals to the extent its participation meets the cumulative but distinct MBE and VSBE contract goals, or portions thereof that it is committed to perform. Example: If the solicitation contains a 25 percent MBE goal and a 5 percent VSBE goal, the dually certified subcontractor shall perform 30 percent of the contract to obtain both goals.</text> </paragraph> <paragraph num="(3)"> <text>Participation by a dually-certified subcontractor may be counted toward the agency’s overall MBE and VSBE goals.</text> </paragraph> <paragraph num="(4)"> <text>On forms provided by the procurement agency, a bidder or offeror shall submit with its bid or proposal:</text> <paragraph num="(a)"> <text>A completed VSBE utilization affidavit including either an agreement to meet the certified VSBE participation goal or a request for a full or partial waiver; and</text> </paragraph> <paragraph num="(b)"> <text>A completed VSBE participation schedule that identifies the VSBE that the bidder or offeror agrees to utilize in the performance of the contract and the percentage of contract value attributed to each VSBE.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>The VSBE participation schedule shall:</text> <paragraph num="(a)"> <text>Include the name of each VSBE that will participate in the project; and</text> </paragraph> <paragraph num="(b)"> <text>Include the percentage of the contract to be paid to each VSBE for the work or supply.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>The failure of a bidder to accurately complete and submit the VSBE utilization affidavit and participation schedule may result in a determination that the bid is not responsive.</text> </paragraph> <paragraph num="(7)"> <text>The failure of an offeror to accurately complete and submit the VSBE utilization affidavit and the VSBE participation schedule may result in a determination that the proposal is not susceptible of being selected for award.</text> </paragraph> <paragraph num="(8)"> <text>The names of prime contractors requesting or purchasing solicitation documents for construction contracts shall be made available on request to any VSBE whose specialty suggests an interest in subcontracting.</text> </paragraph> <paragraph num="(9)"> <text>Each prime contractor receiving solicitation documents as part of a procurement with a VSBE goal shall be given the web address for the Database for purposes of soliciting subcontract quotations, bids, or offers from VSBEs.</text> </paragraph> </paragraph> <paragraph num="D."> <text>Counting Prime Participation Toward Overall and Contract Goals.</text> <paragraph num="(1)"> <text>A procurement agency may count a prime contractor dually-certified as an MBE and a VSBE toward the agency’s overall VSBE and MBE goals.</text> </paragraph> <paragraph num="(2)"> <text>A procurement agency may count the distinct, clearly defined portion of the work of the contract that a VSBE certified prime performs with its own work force toward meeting up to 100 percent of the contract’s VSBE goal.</text> </paragraph> </paragraph> <paragraph num="E."> <text>Direct Solicitation. As part of the solicitation process being employed for the business community in general, and in addition to the public notice requirements of COMAR 21.05.02.04 and 21.05.03.02B, a procurement agency shall send a copy of the solicitation or notice of the solicitation, or both, to a sufficient number of VSBEs listed in the Database, as determined by the procurement officer, as is likely to result in VSBE responses to the solicitation.</text> </paragraph> <paragraph num="F."> <text>Notification. Except for sole source, small, and emergency procurements, a copy of the solicitation notice for each procurement with an VSBE goal may be sent in an electronic format to the Maryland Department of Veterans Affairs for distribution to the appropriate veteran and small business assistance agencies and trade organizations.</text> </paragraph> <paragraph num="G."> <text>Prebid and Preproposal Conferences. When prebid or preproposal conferences are held, the procurement agency shall explain the VSBE subcontracting goal if applicable, the VSBE provisions of the solicitation, the documentation required, and its relationship to the determinations that will be made in connection with the evaluation process.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Contract Award — Documentation."> <paragraph num="A."> <text>The documentation in §C of this regulation is considered part of the contract and shall be furnished by the apparent successful bidder or offeror to the procurement officer within 10 working days from notification of apparent award, or from the date of the award, whichever is earlier. If the documentation is not furnished within the specified time, the bidder or offeror may be rejected as nonresponsible.</text> </paragraph> <paragraph num="B."> <text>A VSBE subcontractor project participation statement shall be furnished and signed by the bidder or offeror and each VSBE listed in the participation schedule. The project participation statement shall include:</text> <paragraph num="(1)"> <text>A statement of intent to enter into a contract between the prime contractor and each subcontractor;</text> </paragraph> <paragraph num="(2)"> <text>If a contract is executed between the procurement agency and the prime contractor or if the prime contract has been awarded and the procurement officer makes a request, copies of the subcontract agreement or agreements; and</text> </paragraph> <paragraph num="(3)"> <text>The amount and type of bonds required of VSBE subcontractors, if any.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Other documentation considered appropriate by the procurement agency to ascertain bidder or offeror responsibility in connection with the contract VSBE participation goal shall be furnished by the bidder or offeror.</text> </paragraph> <paragraph num="D."> <text>If the VSBE utilization affidavit and participation schedule of the apparent successful bidder or offeror do not achieve the contract goal for VSBE participation, the apparent successful bidder or offeror shall submit documentation supporting the waiver request that was included with the bid or proposal as provided in Regulation .09 of this chapter.</text> </paragraph> <paragraph num="E."> <text>An agency head may waive any of the provisions of Regulations .07 and .08 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Waiver."> <paragraph num="A."> <text>If, for any reason, the apparent successful bidder or offeror is unable to achieve the VSBE goal, the bidder or offeror may request, in writing, a waiver to include the following:</text> <paragraph num="(1)"> <text>A detailed statement of the efforts made to select portions of the work proposed to be performed by VSBEs;</text> </paragraph> <paragraph num="(2)"> <text>A detailed statement of the efforts made to contact and negotiate with VSBEs, including:</text> <paragraph num="(a)"> <text>The names, addresses, dates, and telephone numbers of the VSBEs; and</text> </paragraph> <paragraph num="(b)"> <text>A description of the information provided to VSBEs regarding the plans, specifications, and anticipated time schedule for portions of the work to be performed;</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>As to each VSBE that placed a subcontract quotation or offer that the apparent successful bidder or offeror considers to be unacceptable, a detailed statement of the reasons for this conclusion; and</text> </paragraph> <paragraph num="(4)"> <text>A list of VSBEs found to be unavailable, which shall be accompanied by a VSBE Subcontractor Unavailability Certificate signed by the VSBE, or a statement from the apparent successful bidder or offeror that the VSBE refused to give the written verification.</text> </paragraph> </paragraph> <paragraph num="B."> <text>A waiver of a VSBE contract goal may be granted only upon a reasonable demonstration by the bidder or offeror that VSBE subcontract participation was unable to be obtained, or was unable to be obtained at a reasonable price, and if the agency head or designee determines that the public interest is served by a waiver. In making a determination under this section, the agency head or designee may consider engineering estimates, catalogue prices, general market availability, and availability of VSBEs in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between VSBE and non-VSBE cost of participation, and their impact on the overall cost of the contract to the State and any other relevant factor.</text> </paragraph> <paragraph num="C."> <text>An agency head may waive the provisions of Regulations .07 and .08 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures.</text> </paragraph> <paragraph num="D."> <text>When a waiver is granted, except waivers under §C of this regulation, one copy of the waiver determination and the reasons for the determination shall be kept by the VSBE liaison officer with another copy forwarded to the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".10" heading="Amendment of VSBE Participation Schedule."> <paragraph num="A."> <text>If, at any time after submission of a bid or proposal and before execution of a contract, the apparent successful bidder or offeror determines that a VSBE listed on the participation schedule required under Regulation .07 of this chapter has become or will become unavailable, then the apparent successful bidder or offeror shall immediately notify the procurement officer in writing. An apparent successful bidder or offeror shall obtain approval from the procurement officer before any changes to the participation schedule may be made. The bidder or offeror shall make reasonable efforts to substitute another VSBE subcontractor to meet the goal.</text> </paragraph> <paragraph num="B."> <text>The request to amend the VSBE participation schedule shall include:</text> <paragraph num="(1)"> <text>An explanation of the reason for inclusion of the unavailable or ineligible firm on the original VSBE participation schedule;</text> </paragraph> <paragraph num="(2)"> <text>The name of each certified VSBE subcontractor that will substitute for the unavailable or ineligible certified VSBE subcontractor;</text> </paragraph> <paragraph num="(3)"> <text>A description of work to be performed by each certified VSBE subcontractor;</text> </paragraph> <paragraph num="(4)"> <text>The percentage of the contract to be paid to the certified VSBE subcontractor for the work or supply; and</text> </paragraph> <paragraph num="(5)"> <text>A full description of the bidder's or offeror's efforts to substitute another certified VSBE subcontractor to perform the work that the unavailable or ineligible certified VSBE subcontractor would have performed.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The procurement officer shall consult with the VSBE liaison before deciding whether to approve a request to amend the VSBE participation schedule.</text> </paragraph> <paragraph num="D."> <text>Amendments to the VSBE Participation Schedule Occurring After the Date of Contract Award.</text> <paragraph num="(1)"> <text>For purposes of this regulation, “good cause” includes documented nonperformance by the certified VSBE or election by the certified VSBE to cease work on the contract. Failure of the certified VSBE to provide a bond as requested by the contractor is not considered to be nonperformance by the certified VSBE if the requested bond violates State Finance and Procurement Article, §13-227, Annotated Code of Maryland.</text> </paragraph> <paragraph num="(2)"> <text>A contractor may not terminate or otherwise cancel the contract of a certified VSBE listed on the VSBE participation schedule without:</text> <paragraph num="(a)"> <text>Showing good cause why the contract with the certified VSBE should be terminated or cancelled;</text> </paragraph> <paragraph num="(b)"> <text>Obtaining the prior written consent of the VSBE liaison;</text> </paragraph> <paragraph num="(c)"> <text>Obtaining approval of the head of the unit; and</text> </paragraph> <paragraph num="(d)"> <text>Subsequently amending the contract.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The prime contractor shall make reasonable efforts to substitute another VSBE contractor to meet the goal, when good cause is shown.</text> </paragraph> <paragraph num="(4)"> <text>The procurement agency shall send a copy of the VSBE liaison's written consent to the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Compliance."> <text>To ensure compliance with VSBE subcontract participation goals, the procurement agency shall verify that the VSBEs listed in the participation schedule are actually performing work and receiving compensation as set forth in the schedule.</text> </regulation> <regulation prefix="Regulation" num=".12" heading="Certification Procedures."> <paragraph num="A."> <text>General.</text> <paragraph num="(1)"> <text>The certification agency is designated to certify, recertify, and decertify VSBEs.</text> </paragraph> <paragraph num="(2)"> <text>A procurement agency may not permit a vendor to participate in a procurement as a veteran-owned vendor unless it is identified as a certified VSBE in the Database.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Vendor Registration.</text> <paragraph num="(1)"> <text>A veteran vendor seeking to be recognized as a certified VSBE shall register as a vendor in the State’s Internet-based electronic procurement system.</text> </paragraph> <paragraph num="(2)"> <text>A registered vendor shall submit veteran verification and complete the VSBE Program application in the State’s Internet-based electronic procurement system.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Information Which May Be Requested. The certification agency may request the following information to assist in any certification, recertification, decertification, or participation determination. Failure to furnish the requested information within a reasonable time as specified in writing may result in an administrative closing of an application, a denial of certification or recertification, or a determination to decertify. The information consists of:</text> <paragraph num="(1)"> <text>Copies of articles of incorporation, bylaws, minutes, shareholder agreements, stock certificates, stock transfer ledgers, any additional profit-sharing agreements or buyout rights, or in the case of a partnership, the partnership agreement;</text> </paragraph> <paragraph num="(2)"> <text>Current financial statements, business licenses, federal personal income tax returns for the most current 2 years, including all schedules, federal business tax returns for the past 3 years, including all schedules, cancelled checks, resumes of principal parties, and any relevant personal and third-party agreements, such as rental and management agreements; and</text> </paragraph> <paragraph num="(3)"> <text>Copies of supporting veteran-related documents issued by the federal government.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A certified VSBE shall have certified status in the Database at the time the contract is awarded in order for its participation to be counted toward the VSBE contract goal. All payments made shall be counted toward the VSBE goal under a contract entered into when the VSBE was certified.</text> </paragraph> <paragraph num="E."> <text>Failure of a certified VSBE to maintain certification may not be the cause of the termination of the contractual relationship for the remainder of the term of the contract.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§14-601—14-605; Chs. 343 and 344, Acts of 2015; Chs. 708 and 709, Acts of 2017; Ch. 740, Acts of 2018; Ch. 79, Acts of 2021</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 23, 2012 (39:14 Md. R. 839)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04D amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05 amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05B amended effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.10 recodified from COMAR 21.11.13 to COMAR 21.11.14 effective December 28, 2020 (47:26 Md. R. 1108)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective May 16, 2022 (49:10 Md. R. 562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective September 16, 2024 (51:18 Md. R. 810)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective April 1, 2024 (51:6 Md. R. 270)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C, D amended effective April 1, 2024 (51:6 Md. R. 270)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04E adopted effective April 1, 2024 (51:6 Md. R. 270)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06B amended effective April 1, 2024 (51:6 Md. R. 270)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07B, C, E amended effective April 1, 2024 (51:6 Md. R. 270)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09A amended effective April 1, 2024 (51:6 Md. R. 270)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 Verification repealed and new Regulation .12 Certification Procedures adopted effective April 1, 2024 (51:6 Md. R. 270)</annotation> </annotations> </chapter> <chapter num="15" heading="American-Manufactured Goods and Services — Preference"> <regulation prefix="Regulation" num=".01" heading="Definitions"> <text>In this chapter, “Public employer” or “Public body” means a:</text> <paragraph num="A."> <text>Unit;</text> </paragraph> <paragraph num="B."> <text>County;</text> </paragraph> <paragraph num="C."> <text>Municipality;</text> </paragraph> <paragraph num="D."> <text>County board of education including the Baltimore City Board of School Commissioners; or</text> </paragraph> <paragraph num="E."> <text>Special taxing district.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Employee Uniforms and Equipment — Country of Manufacture."> <paragraph num="A."> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Reasonably available quantities” means at least 90 percent of the items procured by the public employer are available within the employer’s delivery schedule.</text> </paragraph> <paragraph num="(2)"> <text>“Substantially less quality” means not in compliance with applicable safety and durability standards.</text> </paragraph> <paragraph num="(3)"> <text>“Unreasonable amount” means more than 5 percent over the lowest bid offering items manufactured outside the United States.</text> </paragraph> </paragraph> <paragraph num="C."> <text>A public employer may not knowingly buy, furnish, or require an employee to buy or acquire for use while on duty the following items if those items are manufactured outside of the United States:</text> <paragraph num="(1)"> <text>A uniform or any other item of apparel, the selection of which is not within the employee’s discretion except for the proper size of the item; or</text> </paragraph> <paragraph num="(2)"> <text>Safety equipment and protective accessories.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A public employer may buy, furnish, or require an employee to buy or acquire for use while on duty the items listed in §C of this regulation that are manufactured outside of the United States if:</text> <paragraph num="(1)"> <text>The items or similar items are not manufactured or available for purchase in the United States;</text> </paragraph> <paragraph num="(2)"> <text>The items or similar items are not manufactured or available for purchase in the United States in reasonably available quantities;</text> </paragraph> <paragraph num="(3)"> <text>The price of the items or similar items manufactured in the United States exceeds the price of similar, available items that are not manufactured in the United States by an unreasonable amount; or</text> </paragraph> <paragraph num="(4)"> <text>The quality of the items or similar items manufactured in the United States is of substantially less quality than comparably priced, similar and available items not manufactured in the United States.</text> </paragraph> </paragraph> <paragraph num="E."> <text>In each bid or proposal subject to the requirements of this regulation, a bidder or offeror shall certify to the public employer whether the offered items are manufactured in the United States. If a bid or proposal offers items that are manufactured in the United States and outside the United States, the bid or proposal shall distinguish which items are manufactured in the United States.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Location of Performance of Services."> <paragraph num="A."> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Services” has the meaning stated in COMAR 21.01.02.01B and includes:</text> <paragraph num="(a)"> <text>Construction-related services;</text> </paragraph> <paragraph num="(b)"> <text>Architectural services;</text> </paragraph> <paragraph num="(c)"> <text>Engineering Services; and</text> </paragraph> <paragraph num="(d)"> <text>Energy performance contracts.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>“Substantially less quality” means not in compliance with applicable performance standards.</text> </paragraph> <paragraph num="(3)"> <text>“Unreasonable amount” means more than 5 percent over the lowest financial proposal or bid offering services provided outside the United States.</text> </paragraph> </paragraph> <paragraph num="C."> <text>This regulation applies to services contracts with an estimated value of $2,000,000 or more.</text> </paragraph> <paragraph num="D."> <text>In response to a solicitation issued by a public employer for services as defined in §B(1) of this regulation, a bidder or offeror shall disclose to the public employer:</text> <paragraph num="(1)"> <text>Whether the bidder or offeror or any proposed subcontractor has plans, at the time the bid or proposal is submitted, to perform any services required under the contract outside the United States; and</text> </paragraph> <paragraph num="(2)"> <text>If services required under the contract are anticipated to be performed outside the United States;</text> <paragraph num="(a)"> <text>Where the services will be performed; and</text> </paragraph> <paragraph num="(b)"> <text>The reason why it is necessary or advantageous to perform the services outside the United States.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Except as provided in §F of this regulation, a public employer may not knowingly contract for architectural services, engineering services, construction-related services, or energy performance services unless the services are to be provided in the United States.</text> </paragraph> <paragraph num="F."> <text>A public employer may contract for services listed in §E of this regulation that are provided outside the United States if:</text> <paragraph num="(1)"> <text>The services are not available in the United States;</text> </paragraph> <paragraph num="(2)"> <text>The price of the services in the United States exceeds by an unreasonable amount the price of services provided outside the United States; or</text> </paragraph> <paragraph num="(3)"> <text>The quality of services in the United States is substantially less than the quality of comparably-priced services provided outside the United States.</text> </paragraph> </paragraph> <paragraph num="G."> <text>In each bid or proposal subject to the requirements of this regulation, a bidder or offeror shall certify to the public employer whether the offered services are provided in the United States. If a bid or proposal offers services that are provided in the United States and outside the United States, the bid or proposal shall distinguish which services are provided in the United States.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="American-Manufactured Goods."> <paragraph num="A."> <text>In this regulation, the following terms have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“American-manufactured goods” means goods that are manufactured or assembled in the United States.</text> </paragraph> <paragraph num="(2)"> <text>Emergency Life Safety and Property Safety Goods.</text> <paragraph num="(a)"> <text>“Emergency life safety and property safety goods” means any goods when provided for the installation in, as part of, or as an addition to a system designed to:</text> <paragraph num="(i)"> <text>Prevent, respond to, alert regarding, suppress, control, or extinguish an emergency or the cause of an emergency that threatens life or property; or</text> </paragraph> <paragraph num="(ii)"> <text>Assist in evacuation in the event of an emergency that threatens life or property.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Emergency life safety and property safety goods” includes systems or items for or relating to:</text> <paragraph num="(i)"> <text>Fire alarms;</text> </paragraph> <paragraph num="(ii)"> <text>Fire sprinklers;</text> </paragraph> <paragraph num="(iii)"> <text>Fire suppression;</text> </paragraph> <paragraph num="(iv)"> <text>Fire extinguishing;</text> </paragraph> <paragraph num="(v)"> <text>Security;</text> </paragraph> <paragraph num="(vi)"> <text>Gas detection;</text> </paragraph> <paragraph num="(vii)"> <text>Intrusion detection;</text> </paragraph> <paragraph num="(viii)"> <text>Access control;</text> </paragraph> <paragraph num="(ix)"> <text>Video surveillance and recording;</text> </paragraph> <paragraph num="(x)"> <text>Mass notification;</text> </paragraph> <paragraph num="(xi)"> <text>Public address;</text> </paragraph> <paragraph num="(xii)"> <text>Emergency lighting;</text> </paragraph> <paragraph num="(xiii)"> <text>Patient wandering;</text> </paragraph> <paragraph num="(xiv)"> <text>Infant tagging; and</text> </paragraph> <paragraph num="(xv)"> <text>Nurse call.</text> </paragraph> </paragraph> <paragraph num="(c)"> <text>“Emergency life safety and property safety goods” includes information technologies and telecommunications products and technologies that are used for the purposes listed in §B(2) of this regulation.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“Goods” means tangible or movable personal property other than money or investment securities.</text> </paragraph> <paragraph num="(4)"> <text>“Information technologies and telecommunications products and technologies” means electronic information processing hardware or software used to generate, acquire, store, transform, process, retrieve, utilize, make available, transmit, or manipulate information or hardware or software used in the transmission of information, images, pictures, voice, or data by radio, video, or other electronic or impulse means.</text> </paragraph> <paragraph num="(5)"> <text>Public Work.</text> <paragraph num="(a)"> <text>“Public work” means a structure or work, including a bridge, building, ditch, road, alley, waterwork, or sewage disposal plant, that:</text> <paragraph num="(i)"> <text>Is constructed for public use or benefit; or</text> </paragraph> <paragraph num="(ii)"> <text>Is paid for wholly or in part by public money.</text> </paragraph> </paragraph> <paragraph num="(b)"> <text>“Public work” does not include, unless let to a contract, a structure or work whose construction is performed by a public service company under order of the Public Service Commission or other public authority regardless of:</text> <paragraph num="(i)"> <text>Public supervision or direction; or</text> </paragraph> <paragraph num="(ii)"> <text>Payment wholly or in part from public money.</text> </paragraph> </paragraph> </paragraph> <paragraph num="(6)"> <text>“Reasonably available quantities” means at least 90 percent of the goods procured by the public body are available within the public body’s delivery schedule.</text> </paragraph> <paragraph num="(7)"> <text>“Substantially less quality” means not in compliance with applicable safety and durability standards including warranty terms.</text> </paragraph> <paragraph num="(8)"> <text>“Unreasonable amount” means more than 5 percent over the lowest financial proposal or bid offering goods manufactured or assembled outside the United States.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Except as provided in §D of this regulation, a public body shall require a contractor or subcontractor to use or supply American-manufactured goods in the performance of a contract for:</text> <paragraph num="(1)"> <text>Constructing or maintaining a public work; or</text> </paragraph> <paragraph num="(2)"> <text>Buying or manufacturing machinery or equipment that is to be installed at a public work site.</text> </paragraph> </paragraph> <paragraph num="D."> <text>A public body may contract for goods that are manufactured or assembled outside the United States:</text> <paragraph num="(1)"> <text>If the head of the public body determines that:</text> <paragraph num="(a)"> <text>The price of the American-manufactured goods exceeds by an unreasonable amount the price of similar manufactured goods that are not manufactured in the United States;</text> </paragraph> <paragraph num="(b)"> <text>The goods or similar goods are not manufactured or available for purchase in the United States in reasonably available quantities;</text> </paragraph> <paragraph num="(c)"> <text>The quality of the goods or similar goods manufactured in the United States is substantially less than the quality of comparably-priced, similar and available goods that are not manufactured in the United States; or</text> </paragraph> <paragraph num="(d)"> <text>The procurement of a manufactured good would be inconsistent with the public interest; or</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>To procure emergency life safety and property safety goods.</text> </paragraph> </paragraph> <paragraph num="E."> <text>In each bid or proposal subject to the requirements of this regulation, a bidder or offeror shall certify to the public body:</text> <paragraph num="(1)"> <text>Whether the offered goods are emergency life safety and property safety goods;</text> </paragraph> <paragraph num="(2)"> <text>If the offered goods are not exempt from the requirements of this regulation, whether the offered goods are provided in the United States;</text> </paragraph> <paragraph num="(3)"> <text>If a bid or proposal offers goods that are provided in the United States and outside the United States, the bid or proposal shall distinguish which goods are provided in the United States.</text> </paragraph> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§12-101, 14-401—14-403, 14-405, and 14-407, Annotated Code of Maryland;Ch. 593, Acts of 2010; Ch. 314, Acts of 2011</annotation> <annotation type="History" subtype="Administrative History">Effective date:</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03 recodified from COMAR 21.11.14 to COMAR 21.11.15 effective December 28, 2020 (47:26 Md. R. 1108)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 adopted effective April 29, 2024 (51:8 Md. R. 369)</annotation> </annotations> </chapter> <chapter num="16" heading="State-Funded Construction Projects — Employee Health Care Expenses"> <regulation prefix="Regulation" num=".01" heading="Definitions."> <paragraph num="A."> <text>In this chapter the following words have the meanings indicated.</text> </paragraph> <paragraph num="B."> <text>Terms Defined.</text> <paragraph num="(1)"> <text>“Aggregate employee health care expenses” means all employee health care expenses paid by a responsible bidder or subcontractor.</text> </paragraph> <paragraph num="(2)"> <text>Aggregate Social Security Wages.</text> <paragraph num="(a)"> <text>“Aggregate Social Security wages” means all wages paid by a responsible bidder or subcontractor to an employee for the period of time in which the wages are paid.</text> </paragraph> <paragraph num="(b)"> <text>“Aggregate Social Security wages” does not include wages that are above the federal Social Security contribution and benefit base.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>“Contractor” means a responsible bidder awarded a contract to complete a State-funded construction project.</text> </paragraph> <paragraph num="(4)"> <text>“Employee” means an individual who is employed by a responsible bidder, contractor, or subcontractor to work on or at the site of a State-funded construction project.</text> </paragraph> <paragraph num="(5)"> <text>“Employee health care expenses” means any costs for health care services that are paid by a responsible bidder or subcontractor to an employee, unless the employee has coverage under another plan, including:</text> <paragraph num="(a)"> <text>Contributions made on behalf of an employee to provide credible health care coverage in the form of any group policy, contract, or program that is written or administered by a disability insurer, health care service plan, fraternal benefits society, self-insured employer plan, or any other entity, in this State or elsewhere, that arranges or provides medical, hospital, and surgical coverage not designated to supplement other private or governmental plans;</text> </paragraph> <paragraph num="(b)"> <text>Contributions made on behalf of an employee to a health savings account as defined under §223 of the Internal Revenue Code or to any other account having a substantially equivalent purpose or effect without regard to whether the contributions qualify for a tax deduction or are excludable from employee income;</text> </paragraph> <paragraph num="(c)"> <text>Reimbursements to an employee for expenses incurred in the purchase of health care services;</text> </paragraph> <paragraph num="(d)"> <text>Payments to a third party for the purpose of providing health care services for an employee;</text> </paragraph> <paragraph num="(e)"> <text>Payments under a collective bargaining agreement for the purpose of providing health care services for an employee; and</text> </paragraph> <paragraph num="(f)"> <text>Costs incurred in the direct delivery of health care services to an employee.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>“Health care services” means medical care, services, or goods that:</text> <paragraph num="(a)"> <text>Qualify as a tax-deductible expense under §213 of the Internal Revenue Code; or</text> </paragraph> <paragraph num="(b)"> <text>Have a substantially equivalent purpose to medical care, services, or goods that qualify as a tax-deductible expense under §213 of the Internal Revenue Code.</text> </paragraph> </paragraph> <paragraph num="(7)"> <text>“Subcontractor” means a person:</text> <paragraph num="(a)"> <text>Listed on a responsive bid to provide construction services under a portion of a contract with the State; or</text> </paragraph> <paragraph num="(b)"> <text>Added to a contract with the State after the contract is awarded in order to provide construction services under a portion of the contract.</text> </paragraph> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Payment of Employee Health Care Expenses."> <paragraph num="A."> <text>This chapter does not apply to a small business with 30 or fewer employees.</text> </paragraph> <paragraph num="B."> <text>Except as provided in §A of this regulation, bidders, contractors and subcontractors on State-funded construction projects awarded through competitive sealed bidding under COMAR 21.05.02 shall pay employee health care expenses as outlined in §C of this regulation.</text> </paragraph> <paragraph num="C."> <text>A bidder, contractor, or subcontractor is deemed to pay employee health care expenses if it:</text> <paragraph num="(1)"> <text>Pays aggregate employee health care expenses of at least 5 percent of the aggregate Social Security wages paid by the bidder, contractor, or subcontractor respectively; or</text> </paragraph> <paragraph num="(2)"> <text>Pays 50 percent or more of the required premium necessary to obtain coverage by a credible health care insurance plan.</text> </paragraph> </paragraph> <paragraph num="D."> <text>For bids opened before July 1, 2021, a bidder, contractor, or subcontractor is deemed to pay employee health care expenses if it:</text> <paragraph num="(1)"> <text>Pays some portion of employee health care expenses under a contract with a credible health care insurance plan or through a collective bargaining agreement; and</text> </paragraph> <paragraph num="(2)"> <text>Will meet the requirements of either §C(1) or (2) of this regulation on renewal of either the contract with a credible health care insurance plan, or the collective bargaining agreement.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Certification of Payment."> <paragraph num="A."> <text>Each bidder, contractor, and subcontractor seeking to perform work on a State-funded construction project shall certify in its bid submission that it pays employee health care expenses by completing and submitting the following certification form:</text> </paragraph> <paragraph num="B."> <text>Addition of New Subcontractors. The certification required pursuant to §A of this regulation shall be submitted prior to the addition of a new subcontractor on existing contracts.</text> </paragraph> <paragraph num="C."> <text>Supporting Documentation. A procurement officer may require a bidder or subcontractor to submit records to the procurement officer that are sufficient to support the bidder or subcontractor’s certification, including a certificate of insurance or a valid contract.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§17-801 et seq., Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: May 17, 2021 (48:10 Md. R. 401)</annotation> </annotations> </chapter> </subtitle> <subtitle num="12" heading="Procurement of Architectural Services and Engineering Services"> <chapter num="01" heading="General"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>The selection of architects and engineers to provide design services for public improvements undertaken by the State is managed by the Department of Transportation for roads, highways, bridges, and certain other projects for which the Department of Transportation has responsibility, and by the Department of General Services for all other public improvements.</text> </paragraph> <paragraph num="B."> <text>A procedure for selecting architectural services and engineering services exists. COMAR 21.12.02 describes the method used by the aforementioned Departments for selecting architectural services and engineering services for projects and indefinite delivery contracts for which the architectural services or engineering services are estimated to cost over $200,000. COMAR 21.12.03 describes the method for the aforementioned Departments’ projects with costs of $200,000 or less.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §13-112, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended as an emergency provision effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981 (Emergency provisions are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective January 9, 1989 (15:27 Md. R. 3138); May 26, 2003 (30:10 Md. R. 669); March 26, 2018 (45:6 Md. R. 321)</annotation> </annotations> </chapter> <chapter num="02" heading="Department of Transportation and Department of General Services; A/E Services Exceeding $200,000"> <regulation prefix="Regulation" num=".01" heading="General."> <paragraph num="A."> <text>State Finance and Procurement Article, Title 13, Subtitle 3, Annotated Code of Maryland, specifies certain duties and criteria in selecting architects and engineers from whom professional services are procured.</text> </paragraph> <paragraph num="B."> <text>Definitions.</text> <paragraph num="(1)"> <text>“Architectural and engineering services” means architectural services, engineering services, or both.</text> </paragraph> <paragraph num="(2)"> <text>Architectural Services.</text> <paragraph num="(a)"> <text>“Architectural services” means professional or creative work that is performed in connection with the design and supervision of construction or landscaping, and that requires architectural education, training, and experience.</text> </paragraph> <paragraph num="(b)"> <text>“Architectural services” includes consultation, research, investigation, evaluation, planning, architectural design and preparation of related documents, and coordination of services furnished by structural, civil, mechanical, and electrical engineers and other consultants.</text> </paragraph> <paragraph num="(c)"> <text>“Architectural services” does not include construction inspection services.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>"Department of General Services” or “General Services” is delegated to procure architectural and engineering services for all other public improvements for State agencies other than Transportation.</text> </paragraph> <paragraph num="(4)"> <text>"Department of Transportation” or “Transportation” includes Maryland Transportation Authority (MDTA) and the following Transportation Business Units: Maryland Department of Transportation (MDOT), Maryland Aviation Administration (MAA), Maryland Port Administration (MPA), Maryland State Highway Administration (SHA), Maryland Transit Administration (MTA), and Maryland Vehicle Administration (MVA).</text> </paragraph> <paragraph num="(5)"> <text>Engineering Services.</text> <paragraph num="(a)"> <text>“Engineering services” means professional or creative work that is performed in connection with utilities, structures, buildings, machines, equipment, and processes and that requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences.</text> </paragraph> <paragraph num="(b)"> <text>“Engineering services” includes consultation, investigation, evaluation, planning, design, and inspection of construction for the purpose of interpreting and assuring compliance with specifications and design within the scope of inspection services.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>“Expression of Interest” means a request containing adequate information to determine a reduced candidate list.</text> </paragraph> <paragraph num="(7)"> <text>“Indefinite Delivery Contract” provides for an indefinite quantity of architectural or engineering services for a fixed time.</text> </paragraph> <paragraph num="(8)"> <text>“Procuring Agency” is the Department of General Services (DGS) or the Maryland Department of Transportation (MDOT), whichever entity is responsible for the specific procurement.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The following are not subject to this chapter:</text> <paragraph num="(1)"> <text>Professional services rendered through State agencies and local jurisdictions;</text> </paragraph> <paragraph num="(2)"> <text>Research and development projects; or</text> </paragraph> <paragraph num="(3)"> <text>Management services not related to architectural and engineering projects.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Applicability."> <paragraph num="A."> <text>This chapter applies to the selection of consultants for procurement of architectural and engineering services in excess of $200,000.</text> </paragraph> <paragraph num="B."> <text>Procedures relating to the development of various contracts and agreements are not included here.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Request for Procurement of Services."> <paragraph num="A."> <text>An agency desiring to procure architectural or engineering services related to transportation and exceeding $200,000 shall submit to the Secretary of Transportation or designee, or if not related to transportation, to the Secretary of General Services or designee, documentation to support its position that the services cannot or for reason should not, be provided feasibly or economically by existing in-house resources.</text> </paragraph> <paragraph num="B."> <text>The Secretary of Transportation or General Services or their designee shall review the request, and if acceptable, certify to the Procuring Agency that the services cannot be provided by existing in-house resources.</text> </paragraph> <paragraph num="C."> <text>After receipt of the Secretary’s or designee’s certification, the agency requesting the services shall finalize a description of the project and a comprehensive scope of the services required. The scope of services shall be completed before the solicitation for the procurement of services, unless otherwise directed by the Procuring Agency’s head or designee.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Expression of Interest."> <paragraph num="A."> <text>After receipt of the Secretary’s or designee’s certification, the Procuring Agency, using text prepared by the agency requesting the services, shall place public announcements on eMaryland Marketplace (eMM) and any optional agency identified publications and/or websites indicating that the request to procure architectural and engineering services has been certified by the Secretary of Transportation or the Secretary of General Services or their designee. MDOT shall advertise in the Daily Record or similar publication.</text> </paragraph> <paragraph num="B."> <text>Public announcement guidelines are as follows:</text> <paragraph num="(1)"> <text>Generally, public announcements shall be places for a specific project. However, to the extent practical and feasible, as determined by the Procurement Agency, two or more projects which are similar in nature and scope of services may be included in a single public announcement, and multiple reduced candidate lists established from those responding to the announcement.</text> </paragraph> <paragraph num="(2)"> <text>In some cases, the Procuring Agency may desire to award two or more Indefinite Quantity contracts which are identical in nature and scope of services, for work to be performed in the same defined geographical area. In these cases, the public announcement shall indicate that two or more contracts may be awarded from a single reduced candidate list.</text> </paragraph> </paragraph> <paragraph num="C."> <text>The public announcements shall contain at least the following:</text> <paragraph num="(1)"> <text>Agency’s name.</text> </paragraph> <paragraph num="(2)"> <text>Project number.</text> </paragraph> <paragraph num="(3)"> <text>Description of the Project, and the architectural and/or engineering service to be procured.</text> </paragraph> <paragraph num="(4)"> <text>Indication of:</text> <paragraph num="(a)"> <text>Specific requirements, as a prerequisite for consideration;</text> </paragraph> <paragraph num="(b)"> <text>The major factors/criteria for the project;</text> </paragraph> <paragraph num="(c)"> <text>Indication how interested consultants may receive additional documentation about the procurement, if available; and</text> </paragraph> <paragraph num="(d)"> <text>Provision of a minimum of 20 days from the date of announcement for response by interested consultants.</text> </paragraph> </paragraph> </paragraph> <paragraph num="D."> <text>If requiring the optional Expression of Interest submission separate from the Technical Proposal, the public announcements must also include the following:</text> <paragraph num="(1)"> <text>A statement from respondents’ indicating of the prime contractor participant or participants, and the areas of involvement of each named Sub-consultant. The statement shall further advise respondents that if they are placed on the reduced candidate list, their submission of proposals should substantially reflect this same composition and areas of involvement.</text> </paragraph> <paragraph num="(2)"> <text>Indication that reduced candidate lists shall consist of two or more consultants from whom technical proposals shall be requested, and that contract negotiations shall be conducted with the consultant(s) which submits the highest rated technical proposal(s).</text> </paragraph> <paragraph num="(3)"> <text>The major factors/criteria for the establishment of a reduced candidate list.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".05" heading="Selection Procedure."> <paragraph num="A."> <text>Candidate List. The Procuring Agency shall establish a list of all consultants who have responded to the solicitation.</text> </paragraph> <paragraph num="B."> <text>Qualification Criteria. Beyond the specific criteria to be applied to individual projects, general qualification criteria to be evaluated for each respondent consultant may include, but not be limited to, the following:</text> <paragraph num="(1)"> <text>Past performance on similar work;</text> </paragraph> <paragraph num="(2)"> <text>Compatibility of the size of the consultant with the size of the proposed project;</text> </paragraph> <paragraph num="(3)"> <text>Capacity to accomplish the proposed work in the required time;</text> </paragraph> <paragraph num="(4)"> <text>Financial responsibility; and</text> </paragraph> <paragraph num="(5)"> <text>Measures of protection for the State against errors and omissions.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Reduced Candidate List. The Procuring Agency’s Evaluation Committee shall evaluate the candidate list, and, by applying uniform criteria may, where applicable, establish a reduced candidate list composed of two or more candidates.</text> </paragraph> <paragraph num="D."> <text>Notification to Expression of Interest Respondents.</text> <paragraph num="(1)"> <text>The Procuring Agency shall immediately notify the consultants on the reduced candidate list that they have qualified and can anticipate a request for technical proposals.</text> </paragraph> <paragraph num="(2)"> <text>The Procuring Agency shall immediately notify the consultants not on the reduced candidate list that they have not qualified and inform them of their rights as follows:</text> <paragraph num="(a)"> <text>A consultant not on the reduced candidate list is entitled to a debriefing with an Evaluation Committee’s representative designated by the Procuring Agency to discuss the non-qualification.</text> </paragraph> <paragraph num="(b)"> <text>The request for a debriefing shall be written and shall be received by the procurement officer within 7 days of the consultant receiving notice.</text> </paragraph> </paragraph> </paragraph> <paragraph num="E."> <text>Request for Technical Proposals.</text> <paragraph num="(1)"> <text>The Request for Technical Proposals may be combined as a single step with the Expression of Interest, section .04 of this chapter. The procurement officer will make the determination to combine these steps.</text> </paragraph> <paragraph num="(2)"> <text>If the Technical Proposals are not combined with the Expression of Interest, upon establishment of a reduced candidate list, the requesting agency shall:</text> <paragraph num="(a)"> <text>Forward the reduced candidate list to the Procurement Officer; and</text> </paragraph> <paragraph num="(b)"> <text>Prepare and forward to the Procurement Officer a request for technical proposals package, including a description of the project and a comprehensive scope of the services required, major factors/criteria to be used in evaluating proposals, and any other agency requirements.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>If the Technical Proposals are not combined with the Expression of Interest, upon receipt of the reduced candidate list and the request for technical proposals package, the Procurement Officer shall send a request for technical proposals to each candidate on the reduced candidate list. The request for proposals shall state that the agency shall conduct contract negotiations with the consultant(s) which submits the highest rated technical proposal(s).</text> </paragraph> </paragraph> <paragraph num="F."> <text>Pre-Proposal Meeting. If deemed necessary by the agency, at the time the request for proposals is sent out, a date shall be designated for a pre-proposal meeting.</text> </paragraph> <paragraph num="G."> <text>Technical Proposal Evaluation and Recommendation.</text> <paragraph num="(1)"> <text>If requiring an Expression of Interest the technical proposal shall be reviewed by the Procuring Agency for consistency with the Expression of Interest. Substantial modification in either composition or areas of involvement from that shown in the consultant’s statement is grounds for disqualification of the proposal. However, upon a showing of compelling justification, the Procuring Agency may accept the proposal, as modified, if this is determined, in the Evaluation Committee’s discretion, as necessary. This determination shall be made as soon as practicable on the basis of the justification submitted by the consultant.</text> </paragraph> <paragraph num="(2)"> <text>The Procuring Agency’s Evaluation Committee shall do the following:</text> <paragraph num="(a)"> <text>Evaluate the technical proposals received in response to the request for proposals.</text> </paragraph> <paragraph num="(b)"> <text>Make recommendations, based on the steps above, for selection in ranked order to the head of the Procuring Agency or designee.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The head of the Procuring Agency or designee shall either concur with the recommendations of the Procuring Agency’s Evaluation Committee or in the event of non-concurrence, shall document the reasons for non-concurrence and request reconsideration of the recommendations by the Procuring Agency’s Evaluation Committee.</text> </paragraph> </paragraph> <paragraph num="H."> <text>Notification to Respondents.</text> <paragraph num="(1)"> <text>The Procurement Officer shall immediately notify the top-ranked consultant(s) and explain what subsequent actions are to be taken.</text> </paragraph> <paragraph num="(2)"> <text>The Procurement Officer shall immediately notify the other non-selected consultant(s) and inform them of their ranking and their rights as follows:</text> <paragraph num="(a)"> <text>The consultant(s) are entitled to a debriefing to discuss their status. The request for a debriefing shall be written and must be received by the procurement officer within 7 days of the consultant receiving notice.</text> </paragraph> <paragraph num="(b)"> <text>A consultant still dissatisfied after the debriefing is entitled to protest the decision in accordance with COMAR 21.02.02.</text> </paragraph> </paragraph> </paragraph> <paragraph num="I."> <text>Contract Negotiations.</text> <paragraph num="(1)"> <text>The Negotiation Team shall be designated by the Procuring Agency for the purpose of conducting contract negotiations.</text> </paragraph> <paragraph num="(2)"> <text>Contract negotiations shall be initiated as follows:</text> <paragraph num="(a)"> <text>The Procuring Agency, through the Negotiation Team, shall initiate contract negotiations with the consultant(s) which the Procuring Agency’s Evaluation Committee has ranked highest based on the evaluation of the technical proposals.</text> </paragraph> <paragraph num="(b)"> <text>In those cases where the agency desires to award two or more open-end contracts, negotiations may be conducted simultaneously with two or more of the consultants which have submitted the highest rated technical proposals.</text> </paragraph> </paragraph> <paragraph num="(3)"> <text>The agency shall determine that the negotiated price and all rates to be paid under the contract are fair, competitive, and reasonable. In making that determination, the agency shall:</text> <paragraph num="(a)"> <text>Consider the scope and complexity of the professional services required; and</text> </paragraph> <paragraph num="(b)"> <text>Conduct a detailed analysis of the cost of the services.</text> </paragraph> </paragraph> <paragraph num="(4)"> <text>In cases of unsuccessful negotiations, the agency shall act as follows:</text> <paragraph num="(a)"> <text>If the agency is unable to negotiate a satisfactory contract with the highest ranked consultant at a price which it determines to be fair, competitive, and reasonable, the agency, with the approval of the agency head or designee, shall terminate negotiations with that consultant. The agency then shall negotiate with the second-ranked consultant in the same manner. If agreement cannot be reached with the second-ranked consultant, the Procuring Agency shall negotiate with other ranked consultants, consecutively in their order of ranking until award or a decision to suspend negotiations and cancel the solicitation has been made by the Procuring Agency.</text> </paragraph> <paragraph num="(b)"> <text>In those cases when simultaneous negotiations are being conducted with two or more consultants for the awarding of open-end contracts, and the agency is unable to negotiate a satisfactory contract with any of the highest ranked consultants, the agency then shall negotiate with other ranked consultants consecutively in their order of ranking until award or a decision to suspend negotiations and cancel the solicitation has been made by the Procuring Agency.</text> </paragraph> </paragraph> <paragraph num="(5)"> <text>If the agency is unable to negotiate a satisfactory contract with any of the Consultants selected and ranked by the Procuring Agency’s Evaluation Committee, the Procurement Officer shall request the:</text> <paragraph num="(a)"> <text>Evaluation committee to make recommendations for the selection of additional consultants, in ranked order; and</text> </paragraph> <paragraph num="(b)"> <text>Negotiation team to continue negotiations in accordance with this section until a satisfactory agreement is reached; or</text> </paragraph> <paragraph num="(c)"> <text>Terminate the solicitation.</text> </paragraph> </paragraph> <paragraph num="(6)"> <text>The negotiation team shall submit its recommendations to the head of the agency or designee for concurrence.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".06" heading="Work Assignments Under Indefinite Quantity Contracts."> <paragraph num="A."> <text>Work Assignments.</text> <paragraph num="(1)"> <text>After the Board of Public Works has approved the award of an indefinite quantity contract, work may be assigned to selected consultants in accordance with this section and other requirements of State procurement law.</text> </paragraph> <paragraph num="(2)"> <text>The Procuring Agency and the consultant shall agree on the specific scope of services to be performed, the maximum hours or fees approved for the specific work assignment, and other matters pertinent to the work assignment.</text> </paragraph> <paragraph num="(3)"> <text>The Procurement Agency and the consultant shall execute a work order subject to the terms and conditions of the original indefinite quantity contract and all additional agreed upon terms.</text> </paragraph> <paragraph num="(4)"> <text>The Procurement Agency shall obtain all other approvals required by law.</text> </paragraph> <paragraph num="(5)"> <text>A signed work order shall become a part of the contract.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Basis of Assignment Under Indefinite Quantity Contracts.</text> <paragraph num="(1)"> <text>Work assignments may be rotated among firms receiving awards under an indefinite quantity contract starting in the order of the ranking of the firms during selection, unless the unit issuing the work assignment finds that:</text> <paragraph num="(a)"> <text>The firm is unable to perform the assignment, lacks the capability in all respects to perform fully the contract requirements, or lacks the integrity or reliability that will assure good faith performance;</text> </paragraph> <paragraph num="(b)"> <text>The hours or fees proposed by the firm for the services needed cannot successfully be negotiated to an amount the unit considers fair and reasonable;</text> </paragraph> <paragraph num="(c)"> <text>Another firm has special experience or qualifications, including geographic proximity to the site for which services are needed, that make it in the State’s best interest to give the assignment to the other firm; or</text> </paragraph> <paragraph num="(d)"> <text>Assignment to another firm would tend to balance to a greater extent, among firms on the indefinite quantity contract list being used, the fees paid or payable for work assignments previously issued.</text> </paragraph> <paragraph num="(e)"> <text>If assignment in this manor conflicts with a federal funding requirement on a project, then the federal method for assignment shall be utilized.</text> </paragraph> </paragraph> <paragraph num="(2)"> <text>If the unit finds that any of the circumstances listed in §C(1)(a) or (b) of this regulation exist, the next firm in the rotation shall be considered for the assignment as provided in §C(1) of this regulation.</text> </paragraph> <paragraph num="(3)"> <text>If the unit finds that any of the circumstances listed in §C(1)(c) of this regulation exist, the unit shall issue the assignment to the firm considered to have the necessary special experience or qualifications.</text> </paragraph> <paragraph num="(4)"> <text>If the unit finds that the circumstance listed in §C(1)(d) of this regulation exists, the unit may issue the work order to the firm which before that time has received work assignments worth the least amount in fees paid or payable under the indefinite quantity contract being used.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".07" heading="Selection."> <text>Contract Awards must be published in eMaryland Marketplace no later than 30 days after approval from the Board of Public Works.</text> </regulation> <regulation prefix="Regulation" num=".08" heading="Compensation for Services."> <paragraph num="A."> <text>Unacceptable Methods. The following methods of compensation are not acceptable:</text> <paragraph num="(1)"> <text>Cost plus a percentage of cost;</text> </paragraph> <paragraph num="(2)"> <text>Percentage of construction cost.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The determination of the method of compensation shall be made by the Procurement Agency.</text> </paragraph> <paragraph num="C."> <text>Prices shall be negotiated in accordance with State Finance and Procurement Article, §13-214, Annotated Code of Maryland.</text> </paragraph> <paragraph num="D."> <text>Audit. The Procurement Agency shall arrange for pre-audits and post-audits, as required. All rates used in cost-plus-fixed-fee compensations shall be verified.</text> </paragraph> <paragraph num="E."> <text>Monitoring.</text> <paragraph num="(1)"> <text>A follow-up monitoring system to fairly evaluate the consultant(s)’ performance shall be initiated by the Procuring Agency. As a minimum, this shall include an evaluation of quality of work, timeliness of completion, effectiveness, and responsiveness to the agency’s needs.</text> </paragraph> <paragraph num="(2)"> <text>The Procuring Agency shall maintain a post-evaluation file for each consultant performing work and shall be considered in performing their evaluations.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Waiver of Selection on a Competitive Basis."> <paragraph num="A."> <text>Waiver Criteria. The Agency head or designee shall waive selection on a competitive basis in writing under any of the following conditions:</text> <paragraph num="(1)"> <text>When the public health and safety is endangered following any natural disaster or Act of God;</text> </paragraph> <paragraph num="(2)"> <text>When a state of emergency is declared by the Governor;</text> </paragraph> <paragraph num="(3)"> <text>When it determines that a bona fide single source of services, supply, or proprietary product or process is required, as determined by the procurement officer;</text> </paragraph> <paragraph num="(4)"> <text>When the procurement officer determines that the services cannot be so completely defined as to lend themselves to procedures for selection on a competitive basis;</text> </paragraph> <paragraph num="(5)"> <text>When a project of a complex nature carried out in phases makes it not feasible to continue subsequent phases with other than the first phase source, as determined by the procurement officer; or</text> </paragraph> <paragraph num="(6)"> <text>When, upon recommendation by the Procurement Agency head or designee, and accompanied by a finding by the Governor of extraordinary circumstances, the Board of Public Works determines that urgent circumstances require prompt action and that the selection of an architectural-engineering consultant for a particular project be made on an expedited basis, that an expedited selection best serves the public interest, and that the need for the expedited selection outweighs the benefits of making a selection on a competitive basis.</text> </paragraph> </paragraph> <paragraph num="B."> <text>Procedure for Waiver Action.</text> <paragraph num="(1)"> <text>If the Agency waives selection on a competitive basis, in writing, in emergency situations described in §A(1) or (2) of this regulation, the procurement agency involved may act immediately.</text> </paragraph> <paragraph num="(2)"> <text>Waivers described in §A(3), (4), and (5) of this regulation, shall be requested by the head of the involved Procuring Agency. The requirements of Regulation .03 of this chapter, are not waived.</text> </paragraph> <paragraph num="(3)"> <text>Waivers described in §A(6) of this regulation, shall be granted pursuant to the action taken by the Board of Public Works.</text> </paragraph> </paragraph> <paragraph num="C."> <text>Documentation of Waiver Action. All waivers granted by the procurement agency shall be reported to the Legislative Policy Committee within 30 days and published in eMaryland Marketplace.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §13-112, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01A, .02A, .04C, and .09A amended as emergency provisions effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981 (Emergency provisions are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01A, .02A, .04C, and .09A amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01A, B; .02A; .03A; .08F; .09A; .10C; .11; .12B;.13C; and .14A amended effective April 1, 1986 (13:3 Md. R. 273)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03, .08, .11, .13, and .14 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B amended effective May 26, 2003 (30:10 Md. R. 669)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01C amended effective September 26, 1983 (10:19 Md. R. 1696)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01D amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective May 26, 2003 (30:10 Md. R. 669)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08A amended effective April 8, 1985 (12:7 Md. R. 708)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09A amended effective May 26, 2003 (30:10 Md. R. 669)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09D adopted effective April 8, 1985 (12:7 Md. R. 708)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 amended effective April 8, 1985 (12:7 Md. R. 708)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10A amended effective September 26, 1983 (10:19 Md. R. 1696); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10B, C and .11I amended effective April 6, 1987 (14:7 Md. R. 834)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11D, G amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11E amended effective April 8, 1985 (12:7 Md. R. 708)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12A amended effective September 26, 1983 (10:19 Md. R. 1696)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14A, B amended effective December 1, 1986 (13:24 Md. R. 2562)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14C amended effective November 7, 2005 (32:22 Md. R. 1759) April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective March 26, 2018 (45:6 Md. R. 321)</annotation> </annotations> </chapter> <chapter num="03" heading="Department of Transportation and Department of General Services; A/E Services, $200,000 or Less"> <regulation prefix="Regulation" num=".01" heading="General."> <text>Architectural and engineering services contracts costing $200,000 or less awarded through the Department of Transportation (MDOT) and the Department of General Services (DGS) result from solicitations and negotiations conducted by the Procuring Agency requiring the services. A list of candidate consultants, consisting of two or more consultants qualified to perform the services, is established by staff within the Procuring Agency. The consultants on the candidate list are requested to submit technical proposals for the requested services. The technical proposals are evaluated by staff within the Procuring Agencies Evaluation Committee and a recommendation for selection is made to the Procurement Agency head or designee. A contract for the requested services is then negotiated with the selected consultant subject to review and approval by the Procurement Agency head or designee.</text> </regulation> <annotations> <annotation type="Authority">State Finance and Procurement Article, §§13-112, Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended as an emergency provision effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective May 10, 1982 (9:9 Md. R. 912); April 1, 1986 (13:3 Md. R. 273); May 26, 2003 (30:10 Md. R. 669); March 26, 2018 (45:6 Md. R. 321)</annotation> </annotations> </chapter> <chapter num="04" heading="Department of General Services; A/E Services Exceeding $200,000" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01A, .02A, C, and .09A amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended as an emergency provision effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981 (Emergency provisions are temporary and not printed in COMAR)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective May 10, 1982 (9:9 Md. R. 912)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11B amended effective April 9, 1985 (12:7 Md. R. 709)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.13 repealed effective April 1, 1986 (13:6 Md. R. 685)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.15 adopted effective April 1, 1986 (13:6 Md. R. 685)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.04 and .07 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08A amended effective September 8, 1986 (13:18 Md. R. 2022); January 9, 1989 (15:27 Md. R. 3138); July 20, 1992 (19:14 Md. R. 1286)</annotation> <annotation type="History" subtype="Administrative History">Regulations .09 and .10 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Chapter revised effective December 1, 1997 (24:24 Md. R. 1671)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01A amended effective February 16, 2004 (31:3 Md. R. 208)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02A amended effective February 16, 2004 (31:3 Md. R. 208)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08A amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08C amended effective February 16, 2004 (31:3 Md. R. 208); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10B amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10C amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10-1B amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10-1C amended effective January 2, 2017 (43:26 Md. R. 1449)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12B, C amended effective December 14, 1998 (25:25 Md. R. 1835)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12C—E amended effective February 16, 2004 (31:3 Md. R. 208)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13-1A amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13-2A, B amended effective February 16, 2004 (31:3 Md. R. 208)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective March 26, 2018 (45:6 Md. R. 321)</annotation> </annotations> </chapter> <chapter num="05" heading="Department of General Services; A/E Services $200,000 or Less" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective July 28, 1986 (13:15 Md. R. 1737); January 2, 2017 (43:26 Md. R 1449)</annotation> <annotation type="History" subtype="Administrative History">Chapter repealed effective March 26, 2018 (45:6 Md. R. 321)</annotation> </annotations> </chapter> </subtitle> <subtitle num="13" heading="Procurement Reporting Requirements"> <chapter num="01" heading="Reporting Requirements"> <regulation prefix="Regulation" num=".01" heading="Sole Source, Emergency, and Expedited Procurement Reports."> <paragraph num="A."> <text>Requirements. The procedures for approval and reporting the award of a contract under sole source, emergency, or expedited situations are provided under COMAR 21.05.05 when there is only one source and COMAR 21.05.06 for all emergency and expedited procurements except for certain architectural services and engineering services which are governed by COMAR 21.12.02.</text> </paragraph> <paragraph num="B."> <text>Annual Report of Sole Source, Emergency, and Expedited Procurements. Each Department shall prepare and submit an annual written report within 60 days following the close of the fiscal year to the Chief Procurement Officer of contracts awarded during the preceding fiscal year under sole source, emergency, or expedited procurement procedures (COMAR 21.05.05 and 21.05.06), whether the procurement was conducted by the Department or subject to review by the Department. The report shall, at a minimum:</text> <paragraph num="(1)"> <text>Name each contractor;</text> </paragraph> <paragraph num="(2)"> <text>State the amount and type of each contract;</text> </paragraph> <paragraph num="(3)"> <text>Describe the supplies, services, maintenance, construction, or construction-related services procured or real property leased;</text> </paragraph> <paragraph num="(4)"> <text>Describe the basis for the award;</text> </paragraph> <paragraph num="(5)"> <text>Identify the Department or agency that awarded the contract;</text> </paragraph> <paragraph num="(6)"> <text>Identify any agency official required to authorize the contract for award;</text> </paragraph> <paragraph num="(7)"> <text>State the award date of the procurement contract and the final date of the contract term;</text> </paragraph> <paragraph num="(8)"> <text>State the date the contract award notice was posted to eMaryland Marketplace; and</text> </paragraph> <paragraph num="(9)"> <text>For procurements awarded under the emergency procurement method:</text> <paragraph num="(a)"> <text>State the number of days between the agency declaration of an emergency procurement and the contract award date;</text> </paragraph> <paragraph num="(b)"> <text>State the date of the emergency declaration; and</text> </paragraph> <paragraph num="(c)"> <text>The date the award was reported to the Board.</text> </paragraph> </paragraph> </paragraph> <paragraph num="C."> <text>The Chief Procurement Officer shall submit to the Governor, the Legislative Policy Committee, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee a consolidated report that includes each report required under §B of this regulation within 90 days following the close of the fiscal year. A report to the General Assembly or a committee of the General Assembly under this regulation is subject to State Government Article, §2-1257, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".02" heading="Annual Report of Service Contracts Exceeding $100,000 in Value."> <paragraph num="A."> <text>Each Department shall prepare and submit an annual written report within 60 days following the close of the fiscal year to the Chief Procurement Officer of contracts for services, construction-related services, architectural services, and engineering services that exceed $100,000 during the preceding fiscal year, whether the procurement was conducted by the Department or subject to review by the Department. The report shall, at a minimum:</text> <paragraph num="(1)"> <text>Name each contractor;</text> </paragraph> <paragraph num="(2)"> <text>State the amount and type of each contract; and</text> </paragraph> <paragraph num="(3)"> <text>Describe the work procured.</text> </paragraph> </paragraph> <paragraph num="B."> <text>The Chief Procurement Officer shall submit to the Governor, the Legislative Policy Committee, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee a consolidated report that includes each report required under §A of this regulation within 90 days following the close of the fiscal year. A report to the General Assembly or a committee of the General Assembly under this regulation is subject to State Government Article, §2-1257, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".03" heading="Reports of the Small Business Reserve Program."> <paragraph num="A."> <text>Each procurement unit shall submit an expenditure plan on the small business reserve program as set forth in COMAR 21.11.01.06D to the Governor's Office of Small, Minority & Women Business Affairs within 60 days after enactment of the annual budget bill by the General Assembly. The format of the expenditure plan shall be determined by the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> <paragraph num="B."> <text>Each procurement unit shall submit a report on the small business reserve program to the Governor’s Office of Small, Minority & Women Business Affairs within 90 days after the end of each fiscal year, in a format determined by the Governor’s Office of Small, Minority & Women Business Affairs, that includes at a minimum:</text> <paragraph num="(1)"> <text>The total number and the dollar value of awards the unit made to certified small businesses under contracts designated as small business reserve contracts;</text> </paragraph> <paragraph num="(2)"> <text>The total number and the dollar value of awards the unit made to certified small businesses under contracts not designated as small business reserve contracts, including purchase card procurements;</text> </paragraph> <paragraph num="(3)"> <text>The total dollar value of awards the unit made under procurement contracts; and</text> </paragraph> <paragraph num="(4)"> <text>Other information required by the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> </paragraph> <paragraph num="C."> <text>By December 31 of each year, the Governor's Office of Small, Minority & Women Business Affairs shall summarize the information required in §D of this regulation and report to the Board of Public Works and, subject to State Government Article, §2-1257, Annotated Code of Maryland, the Legislative Policy Committee.</text> </paragraph> <paragraph num="D."> <text>On or before December 1 each year, the certification agency designated under State Finance and Procurement Article, §14-303b, Annotated Code of Maryland, in consultation with the Governor's Office of Small, Minority & Women Business Affairs, shall submit to the Board of Public Works and, subject to State Government Article, §2–1257, Annotated Code of Maryland, to the Legislative Policy Committee a report on:</text> <paragraph num="(1)"> <text>The status of the outreach program required under State Finance and Procurement Article, §14-504.1, Annotated Code of Maryland; and</text> </paragraph> <paragraph num="(2)"> <text>The total number and dollar value of awards made to small businesses owned by economically disadvantaged individuals under designated small business reserve contracts.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".04" heading="Repealed." /> <regulation prefix="Regulation" num=".05" heading="Annual Summary Report of Property Leased to the State."> <text>The Secretary of General Services shall prepare and submit annually to the General Assembly a written report summarizing all new and renewal leasehold property agreements between State agencies and commercial landlords (Joint Chairmen's Report).</text> </regulation> <regulation prefix="Regulation" num=".06" heading="Retention and Availability of Reports."> <text>The reports required under this subtitle shall be retained for a period of at least 3 years and shall be made available to the general public only as provided by State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland.</text> </regulation> <regulation prefix="Regulation" num=".07" heading="Reporting of Protests and Contract Disputes."> <text>Each procurement officer shall prepare and submit a written report to the procurement officer’s respective agency head concerning all protests and contract disputes. The frequency of this report shall be determined by the procurement agency. The report shall, at a minimum:</text> <paragraph num="A."> <text>Name each bidder/contractor;</text> </paragraph> <paragraph num="B."> <text>State the amount/estimate and type of each contract; and</text> </paragraph> <paragraph num="C."> <text>Indicate the reasons for any time extensions in resolving a protest or contract dispute.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".08" heading="Report of Contracts Performed Outside of the State."> <text>Each department shall prepare and submit an annual report within 90 days following the close of the fiscal year to the Governor and, subject to State Government Article, §2-1257, Annotated Code of Maryland, to the General Assembly of each procurement contract within its jurisdiction awarded during the preceding fiscal year that was exempt from the notice requirements of State Finance and Procurement Article, §§13-103(c) and 13-104(c), Annotated Code of Maryland, because the procurement contract reasonably was expected to be performed entirely outside the State or the District of Columbia. The report shall, at a minimum, include:</text> <paragraph num="A."> <text>The name of each contractor;</text> </paragraph> <paragraph num="B."> <text>The amount and type of each contract;</text> </paragraph> <paragraph num="C."> <text>A description of the procurement; and</text> </paragraph> <paragraph num="D."> <text>The basis of the award and reasons why the contract required performance outside the State or the District of Columbia.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".09" heading="Report of Noncompetitive Negotiated Procurements."> <text>The Department of General Services shall prepare and submit an annual report within 90 days following the close of the fiscal year to the Board and, subject to State Government Article, §2-1257, Annotated Code of Maryland, to the General Assembly, of each class of procurement for which the noncompetitive negotiated procurement method has been approved. The report shall describe the reason for approving the use of that methodology for each class.</text> </regulation> <regulation prefix="Regulation" num=".10" heading="Procurement Policies and Procedures."> <paragraph num="A."> <text>Each State agency not governed by its own board, commission, council or authority that is required to report to the Board under State Finance and Procurement Article, §12-401, Annotated Code of Maryland, shall submit written procurement policies and procedures to the Board annually within 60 days following the close of the fiscal year. State agencies governed by their own board, commission, council, or authority shall submit the policies and procedures to the board, commission, council, or authority for approval. In fiscal years following the initial submission of the procurement policies and procedures, State agencies shall report only changes to the policies and procedures annually, unless the Board directs otherwise.</text> </paragraph> <paragraph num="B."> <text>This regulation does not apply to agreements that are excluded from the definition of procurement contract in COMAR 21.01.02.01B.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".11" heading="Individual Surety Report — Repealed" /> <regulation prefix="Regulation" num=".12" heading="Report on Unsolicited Proposal Outreach — Repealed" /> <regulation prefix="Regulation" num=".13" heading="Report on Project Delivery Methods."> <paragraph num="A."> <text>On or before December 1 of each year, each agency procuring construction shall report to the Board of Public Works on the use of the design-build and construction management at risk project delivery methods for the prior fiscal year.</text> </paragraph> <paragraph num="B."> <text>The report format shall be determined by the Board of Public Works.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".14" heading="Report on Green Purchasing."> <paragraph num="A."> <text>On or before September 1 of each year, each procurement agency shall report to the Department of General Services on the agency’s procurement of environmentally preferable products and services during the preceding fiscal year, including the types and quantities of products and services procured. The report format shall be determined by the Department of General Services.</text> </paragraph> <paragraph num="B."> <text>Green Purchasing Committee. On or before October 1 of each year, the Maryland Green Purchasing Committee, as established in State Finance and Procurement Article, §14-410, Annotated Code of Maryland, shall report to the General Assembly on the Committee’s activities and the progress made on the implementation of the Green Maryland Act of 2010. The report is subject to State Government Article, §2-1257, Annotated Code of Maryland.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".15" heading="Report on Veteran-Owned Small Business Participation."> <paragraph num="A."> <text>On or before October 1 of each year, each procurement unit shall report to the Governor's Office of Small, Minority & Women Business Affairs on the number and amount of contracts awarded to VSBEs and the effectiveness of the VSBE program, in accordance with COMAR 21.11.14.06.</text> </paragraph> <paragraph num="B."> <text>The report format shall be determined by the Governor's Office of Small, Minority & Women Business Affairs.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".16" heading="Preferred Provider Reports."> <paragraph num="A."> <text>Within 60 days after enactment of the State budget bill by the General Assembly, each unit and State aided or controlled entity shall report to the Department of General Services on the forecasted expenditures and contracts for the upcoming fiscal year. The report format shall be determined by the Department of General Services.</text> </paragraph> <paragraph num="B."> <text>Within 90 days after the end of each fiscal year, a unit or State aided or controlled entity shall submit a report to the Department of General Services on the contracts awarded and payments made to preferred providers. The report format shall be determined by the Department of General Services.</text> </paragraph> <paragraph num="C."> <text>Within 60 days after receipt of the reports required under State Finance and Procurement Article, §14-110(c)—(d), Annotated Code of Maryland, the Department of General Services shall provide a summary report to the:</text> <paragraph num="(1)"> <text>Board of Public Works;</text> </paragraph> <paragraph num="(2)"> <text>Senate Education, Health, and Environmental Affairs Committee;</text> </paragraph> <paragraph num="(3)"> <text>House Health and Government Operations Committee; and</text> </paragraph> <paragraph num="(4)"> <text>Legislative Policy Committee.</text> </paragraph> </paragraph> </regulation> <regulation prefix="Regulation" num=".17" heading="State Board of Elections Report."> <paragraph num="A."> <text>Definition.</text> <paragraph num="(1)"> <text>In this regulation, the following term has the meaning indicated.</text> </paragraph> <paragraph num="(2)"> <text>Defined Term — Doing Public Business.</text> <paragraph num="(a)"> <text>“Doing public business” means making or having a single contract with a single governmental entity involving cumulative consideration of at least $200,000.</text> </paragraph> <paragraph num="(b)"> <text>“Doing public business” does not include receiving a salary from a governmental entity.</text> </paragraph> </paragraph> </paragraph> <paragraph num="B."> <text>Each governmental entity shall prepare and submit a quarterly report to the State Board of Elections within 10 Business Days following the close of each calendar quarter on a form provided by the State Board of Elections, pursuant to Election Law Article §14-107, Annotated Code of Maryland. The report shall include the required information for any person that was awarded a contract that caused the person to be doing public business with the governmental entity during the preceding calendar quarter.</text> </paragraph> </regulation> <regulation prefix="Regulation" num=".18" heading="Report on Cybersecurity Infrastructure Procurements."> <text>On or before December 1 of each year, the Department of General Services shall submit a report to the Board of Public Works on procurements made under COMAR 21.02.01.04B(10) that shall include for each procurement:</text> <paragraph num="A."> <text>The purposes of the procurement;</text> </paragraph> <paragraph num="B."> <text>The name of the contractor;</text> </paragraph> <paragraph num="C."> <text>The contract amount;</text> </paragraph> <paragraph num="D."> <text>The method of procurement utilized;</text> </paragraph> <paragraph num="E."> <text>The number of bidders who bid on the procurement; and</text> </paragraph> <paragraph num="F."> <text>The contract term.</text> </paragraph> </regulation> <annotations> <annotation type="Authority">:Election Law Article, §§14-101 and 14-107; State Finance and Procurement Article, §§12-101, 13-207, 14-305, 14-505, 15-110, 15-111, and 17-104; Annotated Code of Maryland</annotation> <annotation type="History" subtype="Administrative History">Effective date: July 1, 1981 (8:13 Md. R. II-5)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01B, .02, .03 and .04A amended as an emergency provision effective July 1, 1982 (9:15 Md. R. 1508); emergency status extended at 9:16 Md. R. 1601, 9:17 Md. R. 1698, 9:20 Md. R. 1979; adopted permanently effective October 12, 1982 (9:20 Md. R. 1982)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01B, .02, and .04 amended effective May 6, 1985 (12:9 Md. R. 817)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01B, C amended effective April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.03, .06 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .01 amended effective June 29, 2020 (47:13 Md. R. 643); September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02 amended effective April 7, 2008 (35:7 Md. R. 751); September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03 amended effective October 18, 1999 (26:21 Md. R. 1631); July 4, 2005 (32:13 Md. R. 1117); March 12, 2007 (34:5 Md. R. 562); June 29, 2020 (47:13 Md. R. 643); September 5, 2022 (49:18 Md. R. 819)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A amended effective July 15, 2019 (46:14 Md. R. 623)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03A, B amended effective April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03B amended effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03D adopted effective March 3, 2025 (52:4 Md. R. 221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04 repealed effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07 amended effective June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulations .08 and .09 adopted effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .08 amended effective April 7, 2008 (35:7 Md. R. 751); September 5, 2022 (49:18 Md. R. 819); September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .09 amended effective April 7, 2008 (35:7 Md. R. 751); June 29, 2020 (47:13 Md. R. 643)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 adopted effective March 13, 2006 (33:5 Md. R. 523)</annotation> <annotation type="History" subtype="Administrative History">Regulation .10 amended effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 adopted as an emergency provision effective March 31, 2007 (34:9 Md. R. 824); adopted permanently effective July 16, 2007 (Md. R. 1246)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11 repealed effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .11A amended effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 adopted effective February 23, 2009 (36:4 Md. R. 355)</annotation> <annotation type="History" subtype="Administrative History">Regulation .12 repealed effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .13 adopted effective August 23, 2010 (37:17 Md. R. 1186)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14 adopted effective March 5, 2012 (39:4 Md. R. 338)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14A amended effective March 16, 2015 (42:5 Md. R. 488)</annotation> <annotation type="History" subtype="Administrative History">Regulation .14B amended effective September 18, 2023 (50:18 Md. R. 800)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15 adopted effective July 23, 2012 (39:14 Md. R. 839)</annotation> <annotation type="History" subtype="Administrative History">Regulation .15 amended effective April 29, 2024 (51:8 Md. R. 369)</annotation> <annotation type="History" subtype="Administrative History">Regulation .16 adopted effective April 28, 2014 (41:8 Md. R. 473)</annotation> <annotation type="History" subtype="Administrative History">Regulation .17 adopted effective March 11, 2019 (46:5 Md. R. 310)</annotation> <annotation type="History" subtype="Administrative History">Regulation .18 adopted effective September 18, 2023 (50:18 Md. R. 800)</annotation> </annotations> </chapter> </subtitle> <subtitle num="14" heading="Procurement of Human, Social, Cultural, and Educational Services"> <chapter num="01" heading="General Regulations" reason="Repealed"> <annotations> <annotation type="History" subtype="Administrative History">Effective date: July 29, 1985 (12:15 Md. R. 1526)</annotation> <annotation type="History" subtype="Administrative History">Regulations .02—.06 amended effective January 9, 1989 (15:27 Md. R. 3138)</annotation> <annotation type="History" subtype="Administrative History">Regulation .02B amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03C amended effective February 24, 1997 (24:4 Md. R. 294)</annotation> <annotation type="History" subtype="Administrative History">Regulation .03F repealed effective April 24, 1995 (22:8 Md. R. 599)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04B amended effective February 8, 1988 (15:3 Md. R. 305)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04C amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .04F amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)</annotation> <annotation type="History" subtype="Administrative History">Regulation .05A, B amended effective February 8, 1988 (15:3 Md. R. 305)</annotation> <annotation type="History" subtype="Administrative History">Regulation .06C amended effective August 2, 1993 (20:15 Md. R. 1221)</annotation> <annotation type="History" subtype="Administrative History">Regulation .07A, B amended effective December 25, 2000 (27:25 Md. R. 2284)</annotation> <annotation type="History" subtype="Administrative History">Regulations .01—.07 repealed effective January 2, 2017 (43:26 Md. R. 1449)</annotation> </annotations> </chapter> </subtitle>