# COMAR Title 21 — State Procurement Regulations

## Subtitle 01 — General Provisions

### Chapter 01 — Authority, Policies, and Purposes

**Authority:** State Finance and Procurement Article, §§11-201, 12-101, 12-108, 14-604, 15-210, and 17-204, Annotated Code of Maryland

**Administrative History:** Effective date: July 1, 1981 (8:13 Md. R. II-5)

**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)

**Administrative History:** Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)

**Administrative History:** Regulation .01A amended effective October 18, 1999 (26:21 Md. R. 1631); May 2, 2022 (49:9 Md. R. 531)

**Administrative History:** Regulation .01D adopted effective May 2, 2022 (49:9 Md. R. 531)

**Administrative History:** Regulation .02 amended effective May 2, 2022 (49:9 Md. R. 531)

#### Regulation .01 Promulgating Authorities.

*COMAR 21.01.01.01*

A. 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.

B. Regulations concerning the Maryland State Board of Contract Appeals shall be promulgated by the Appeals Board.

C. Regulations concerning prevailing wage shall be promulgated by the Commissioner of Labor and Industry, Maryland Department of Labor.

D. Regulations concerning veteran-owned small business enterprise participation shall be promulgated by the Governor's Office of Small, Minority, and Women Business Affairs.

#### Regulation .02 Regulations Compliance and Review.

*COMAR 21.01.01.02*

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.

#### Regulation .03 Policies and Purposes.

*COMAR 21.01.01.03*

The principal policies and purposes of these regulations are to:

A. Provide for increased public confidence in the procedures followed in public procurement;

B. Ensure the fair and equitable treatment of all persons who deal with the procurement system of this State;

C. Simplify, clarify, and modernize the regulations governing procurement by this State;

D. Permit the continued development of procurement regulations, policies, and practices;

E. Provide increased economy in State procurement activities and to maximize to the fullest extent the purchasing power of the State;

F. Provide safeguards for the maintenance of a procurement system of quality and integrity;

G. Foster effective broad-based competition through support of the free enterprise system; and

H. Promote development of uniform procurement procedures to the extent possible.

#### Regulation .04 Application of Maryland Law.

*COMAR 21.01.01.04*

The principles of the law of Maryland shall be used to interpret the provisions of this title.

### Chapter 02 — Terminology

**Authority:** State Finance and Procurement Article, §§3.5-301, 11-101, 12-101, 13-101 and 13-108, Annotated Code of Maryland

**Administrative History:** Effective date: July 1, 1981 (8:13 Md. R. II-5)

**Administrative History:** Regulation .05 amended effective May 21, 1984 (11:10 Md. R. 865)

**Administrative History:** Regulations .20A, .36, .40, and .61A amended effective May 10, 1982 (9:9 Md. R. 912)

**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)

**Administrative History:** Regulations .23 and .29 adopted, .28 and .71 amended effective May 6, 1985 (12:9 Md. R. 814)

**Administrative History:** Regulation .24-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)

**Administrative History:** Regulation .27-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)

**Administrative History:** Regulation .36-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)

**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)

**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)

**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)

**Administrative History:** Regulation .61B amended effective July 29, 1985 (12:15 Md. R. 1526)

**Administrative History:** Regulation .63-1 adopted effective July 29, 1985 (12:15 Md. R. 1526)

**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)

**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)

**Administrative History:** Regulation .68-1 amended effective July 29, 1985 (12:15 Md. R. 1526)

**Administrative History:** Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)

**Administrative History:** Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)

**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)

#### Regulation .01 Definitions.

*COMAR 21.01.02.01*

A. In this title, the following words have the meanings indicated.

B. Terms Defined.

  (1) “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”.

  (2) “Annual cost” means a maximum dollar expenditure for a 12-month period including the costs of amendments, change orders, and renewals.

  (3) “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.

  (4) “Appeals Board” means the Maryland State Board of Contract Appeals.

  (5) “Appropriate department” means the department with control agency responsibility under this title for the procurement.

  (6) Architectural Services.

    (a) “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.

    (b) “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.

    (c) “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.

  (7) Repealed.

  (8) “Award” means the transmission by the procurement agency, after all required approvals have been obtained, of:

    (a) The executed contract; or

    (b) Written notice of award to the selected vendor.

  (9) “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.

  (10) “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.

  (11) “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.

  (12) “Bidder's application” means the appropriate form designated by the procurement agency for use by vendors wishing to do business with the State.

  (13) “Board” means the Board of Public Works.

  (13-1) “Broker” means a person that conducts business (other than real estate, investment, or insurance sales) on a pass-through basis and with respect to:

    (a) Supplies:

      (i) 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,

      (ii) Does not regularly assume physical custody or possession of supplies of comparable character to those offered to the State, or

      (iii) Exclusively acts as a middleman in the provision of supplies offered to the State; or

    (b) 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.

  (14) “Business” means any corporation, partnership, individual, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.

  (15) Repealed.

  (16) “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.

  (16-1) “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.

  (17) “Code” means the Annotated Code of Maryland.

  (18) “Commissioner” means the Commissioner of Labor and Industry of the Maryland Department of Labor.

  (19) Commodity.

    (a) “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.

    (b) “Commodity” differs from “supply” in that commodity does not include leases of real property.

  (20) “Competitive sealed bidding” means the process set forth in COMAR 21.05.02.

  (21) “Competitive sealed proposals” means the process set forth in COMAR 21.05.03.

  (22) “Comptroller” means the Comptroller of the Treasury of the State.

  (23) Construction.

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

    (b) “Construction” includes any major work necessary to repair, prevent damage to, or sustain existing components of an improvement to real property.

    (c) “Construction” does not include the maintenance or routine operation of an existing improvement to real property, or activities related to an energy performance contract.

  (24) Construction-Related Services.

    (a) “Construction-related services” means a service that is necessary for construction and maintenance of a public improvement project.

    (b) “Construction-related services” includes feasibility studies, surveying, construction management, construction inspection, programming, energy audits, interior design, and telecommunications systems.

    (c) “Construction-related services” does not include:

      (i) Such services as housekeeping, security, janitorial, and the like;

      (ii) Services provided in connection with an energy performance contract.

  (25) Contract.

    (a) “Contract” means an agreement:

      (i) In writing except as otherwise authorized; and

      (ii) 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.

    (b) “Contract” does not include:

      (i) 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

      (ii) Medicaid, Medicare, Judicare, or similar reimbursement contracts for which user eligibility and cost are set by law or regulation.

  (26) “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.

  (27) “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.

  (28) “Control” means the power to supervise, regulate, or command and includes the authority to approve or disapprove an action.

  (29) “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.

  (30) “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.

  (31) “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.

  (32) “Day” means calendar day unless otherwise designated.

  (33) “Department” means the State Treasurer, the Departments of General Services and Transportation, and the Maryland Port Commission.

  (34) “Determination” means a written procurement decision made by a public official or employee which is based upon written findings.

  (35) “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.

  (35-1) “eMaryland Martketplace” or “eMaryland Marketplace Advantage” or “eMMA” means the Internet-based procurement system managed by the Department of General Services.

  (36) “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.

  (36-1) “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.

  (37) Engineering Services.

    (a) “Engineering services” means professional or creative work that:

      (i) Is performed in connection with utilities, structures, buildings, machines, equipment, and processes, including structural, mechanical, plumbing, electrical, geotechnical, and environmental engineering; and

      (ii) Requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences.

    (b) “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.

    (c) “Engineering services” does not include:

      (i) The inspection of construction not requiring engineering training;

      (ii) Services provided in connection with an energy performance contract.

  (38) Equipment.

    (a) “Equipment” means personal property of a durable nature that retains its identity throughout its useful life.

    (b) “Equipment” includes aircraft and vessels.

    (c) “Equipment” does not include commodities, motor vehicles, or information technology equipment (hardware and software).

  (39) “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.

  (40) “Established catalog price” means the price included in a current catalog, price list, schedule, or other form that:

    (a) Is regularly maintained by the manufacturer or supplier of an item;

    (b) Is published or available for inspection by customers; and

    (c) States:

      (i) Discounted prices at which sales are currently or were last made to local, state, or federal agencies; or

      (ii) Prices at which sales are currently or were last made to the general buying public.

  (41) “Evaluated bid price” means the dollar amount of a bid after bid price adjustments are made under objectively measurable criteria.

  (42) “Expedited procurement” means the process set forth in COMAR 21.05.06.

  (43) “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.

  (44) “Fund availability” means monies that are currently credited to the procurement agency and are contained within the proper object of expenditure.

  (45) Repealed.

  (46) “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.

  (47) “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.

  (47-1) “Information technology” means all electronic information processing, including:

    (a) Maintenance;

    (b) Telecommunications; [and]

    (c) Hardware;

    (d) Software; and

    (e) Associated services.

  (48) “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.

  (49) “Invitation for quotation” means invitation for bids.

  (50) “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.

  (51) “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.

  (52) “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.

  (52-1) “Local Jurisdiction” means a county or a government entity which:

    (a) Is a unit of government responsible for an area situated solely within a single county;

    (b) Has a governing body elected independently of the county government;

    (c) Is financed with revenues secured in whole or in part from special taxes or assessments levied on real property situated within the area;

    (d) Performs municipal services for the residents of the area; and

    (e) Was not created for limited or special purposes.

  (53) “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.

  (54) Minority Business Enterprise (MBE).

    (a) “Minority business enterprise (MBE)” means any legal entity, other than a joint venture, organized to engage in commercial transactions which is:

      (i) At least 51 percent owned and controlled by one or more individuals who are socially and economically disadvantaged; and

      (ii) 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.

    (b) “Minority business enterprise (MBE)” includes a not-for-profit entity organized to promote the interests of physically or mentally disabled individuals.

  (55) Repealed.

  (56) “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.

  (57) “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.

  (58) “Multiple award” means the award of contracts to more than one vendor for the same goods or labor.

  (59) “Multiyear contract” means a contract that requires appropriations for more than 1 fiscal year.

  (60) “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.

  (61) “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.

  (62) “Oral bids” means bids which are proposed by a means other than by writing.

  (63) “Partial or progressive awards” means a split award of a term contract to more than one vendor.

  (64) “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.

  (64-1) “Primary procurement unit” means:

    (a) The State Treasurer;

    (b) The Department of General Services;

    (c) The Department of Transportation;

    (d) The Maryland Port Commission;

    (e) Morgan State University;

    (f) St. Mary’s College of Maryland; and

    (g) The University System of Maryland.

  (65) “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.

  (66) “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.

  (66-1) Procurement Contract.

    (a) “Procurement contract” means an agreement in any form entered into by a unit for procurement.

    (b) “Procurement contract” does not include:

      (i) A collective bargaining agreement with an employee organization;

      (ii) An agreement with a contractual employee as defined in State Personnel and Pensions Article, §1-101(e), Annotated Code of Maryland; or

      (iii) A Medicaid, Judicare, or similar reimbursement contract for which law sets user or recipient eligibility and price payable by the State.

  (67) “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.

  (68) “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.

  (69) “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.

  (70) “Purchase order” means a purchaser's document authorizing a procurement from a vendor. Upon acceptance by a vendor, the purchase order becomes a contract.

  (71) “Quotation” means bid.

  (72) “Regulation” has the same definition as set forth in State Government Article, §10-101(3), Annotated Code of Maryland.

  (73) “Reinstatement” means adding to a contract for services an add alternate bid which had been rejected at the time of award of the contract.

  (74) “Request for bids” means invitation for bids.

  (75) “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.

  (76) “Request for quotation” means invitation for bids.

  (77) “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.

  (78) “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.

  (79) Services.

    (a) “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.

    (b) “Services” does not include maintenance, construction-related services, architectural services, engineering services, or energy performance contract services.

  (80) “Small business” means a business as defined in State Finance and Procurement Article, §14-501 (d), Annotated Code of Maryland.

  (81) “Small business preference” means a purchase request for which the procurement agency invites bids from a list of qualified bidders including small businesses.

  (82) “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.

  (83) “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.

  (84) State Agency.

    (a) “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.

    (b) “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.

  (84-1) “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.

  (85) “Supplemental agreement” means any contract modification which is accomplished by the mutual action of the parties.

  (86) “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.

  (87) Supplies.

    (a) “Supplies” means all tangible personal property, including equipment, and leases of equipment, including necessarily associated services.

    (b) “Supplies” does not include an interest in real property or tangible personal property acquired or used in connection with an energy performance contract.

  (88) Supplies and Services for Aeronautics-Related Activities.

    (a) “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.

    (b) “Supplies and services for aeronautics-related activities” includes information processing supplies and services.

    (c) “Supplies and services for aeronautics-related activities” does not include:

      (i) Supplies funded by proceeds from State obligation bonds and insurance; or

      (ii) Banking and financial services under the authority of the State Treasurer.

  (89) “Telecommunication” means the transmission of information, images, pictures, voice or data by radio, video, or other electronic or impulse means.

  (90) “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.

  (91) “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.

  (92) “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.

  (93) Repealed.

  (94) “Treasurer” means the Treasurer of the State of Maryland.

  (95) “University” or “University of Maryland” means the University System of Maryland.

  (96) “Using agency” means any State agency that uses any goods or labor procured under this title.

  (97) “Vendor” means a person who desires to enter into a contract with the State.

  (98) “Vendor list” means a compilation of the names and addresses of vendors that have submitted a bidder's application to a procurement agency.

  (99) “Voucher” means a claim for reimbursement of funds resulting from an expenditure related to official State business.

### Chapter 03 — Applicability

**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

**Administrative History:** Effective date: July 1, 1981 (8:13 Md. R. II-5)

**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)

**Administrative History:** Regulation .01A amended effective July 29, 1985 (12:15 Md. R. 1526)

**Administrative History:** Chapter revised effective January 9, 1989 (15:27 Md. R. 3138)

**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)

**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)

**Administrative History:** Regulation .01B amended effective March 13, 2006 (33:5 Md. R. 523); September 18, 2023 (50:18 Md. R. 800)

**Administrative History:** Regulation .01C adopted effective March 13, 2006 (33:5 Md. R. 523)

**Administrative History:** Regulation .01-1 adopted effective October 18, 1999 (26:21 Md. R. 1631)

**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)

**Administrative History:** Regulation .01-1B amended effective April 28, 2014 (41:8 Md. R. 473)

**Administrative History:** Regulation .01-1E amended effective May 13, 2013 (40:9 Md. R. 789)

**Administrative History:** Regulation .03B amended effective March 5, 2012 (39:4 Md. R. 338); September 18, 2023 (50:18 Md. R. 800)

**Administrative History:** Regulation .05 amended effective April 7, 2008 (35:7 Md. R. 751)

**Administrative History:** Regulation .06 adopted effective April 7, 2008 (35:7 Md. R. 751)

**Administrative History:** Regulation .07 adopted effective February 7, 2011 (38:3 Md. R. 152)

**Administrative History:** Regulation .08 adopted effective March 5, 2012 (39:4 Md. R. 338)

#### Regulation .01 Exemptions.

*COMAR 21.01.03.01*

A. The following are exempt from applicability of this title:

  (1) Reimbursement contracts (Judicare, Medicaid, Medicare, or similar reimbursement contracts) for which user eligibility and cost are set by law or by rules and regulations;

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

  (3) Purchase of land, and a permanent or temporary interest in land;

  (4) Contracts or like business agreements between a State agency and:

    (a) Another State agency, except as provided under COMAR 21.05.12.02B;

    (b) An agency or political subdivision of the State or other governments, except as provided under COMAR 21.05.12.02B;

    (c) A government, including the government of another state, of the United States, or of another country; or

    (d) A bistate, multistate, bicounty, or multicounty governmental agency.

  (5) Procurement by bistate or multistate governmental agencies;

  (6) Procurement by bicounty or multicounty governmental agencies;

  (7) Procurement by political subdivisions of the State, including counties, municipalities, sanitary districts, drainage districts, soil conservation districts, and water supply districts;

  (8) Disposal of surplus or excess real or personal property;

  (9) Procurement in support of enterprise activities for purposes of direct resale or remanufacture and subsequent resale;

  (10) Agreements creating contractual employee relationships, as set forth in State Personnel and Pensions Article, §13-101, Annotated Code of Maryland;

  (11) Procurements by the Maryland State Planning Council on Developmental Disabilities for services to support demonstration, pilot, and training programs;

  (12) Procurements by the Maryland State Arts Council for the promotion or support of the arts;

  (13) The Blind Industries and Services of Maryland;

  (14) The Maryland Health and Higher Educational Facilities Authority to the extent that no monies of the State are to be expended on a contract;

  (15) The Maryland Higher Education Supplemental Loan Authority to the extent that no monies of the State are to be expended on a contract;

  (16) 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;

  (17) 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:

    (a) Services of managers to invest the assets of the State Retirement and Pension System, including real and personal property;

    (b) 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;

    (c) Services related to the administration of the optional retirement program under State Personnel and Pensions Article, Title 30, Annotated Code of Maryland; and

    (d) 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;

  (18) The Maryland Food Center Authority to the extent the Authority is exempt under Article 41, Title 13, Subtitle 1, Annotated Code of Maryland;

  (19) The Maryland Public Broadcasting Commission:

    (a) For artists' services for educational and cultural television productions; or

    (b) When planning for or fulfilling the obligations of grants or cooperative agreements that support the educational and cultural activities of the Commission;

  (20) Public institutions of higher education for cultural, entertainment, and intercollegiate athletic contracts;

  (21) 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;

  (22) The Maryland Automobile Insurance Fund;

  (23) The Maryland Historical Trust for:

    (a) Surveying and evaluating architecturally, archaeologically, historically, or culturally significant properties; and

    (b) Other than as to architectural services, preparing historic preservation planning documents and educational material;

  (24) The University System of Maryland and Morgan State University, as set forth in Regulation .01-1 of this chapter.

  (25) 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;

  (26) St. Mary's College of Maryland, as set forth in Regulation .01-1 of this chapter;

  (27) 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;

  (28) The Rural Maryland Council;

  (29) 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:

    (a) Provides a substantive promotional or marketing value that the Lottery determines acceptable in exchange for advertising or other promotional activities provided by the Lottery;

    (b) Does not involve advertising or promoting alcohol or tobacco products; and

    (c) Is reviewed by the Attorney General and approved by the Maryland Lottery Director or the Director's designee;

  (30) The Maryland Health Insurance Plan established under Insurance Article, Title 14, Subtitle 5, Annotated Code of Maryland;

  (31) 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

  (32) 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;

  (33) 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:

    (a) 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

    (b) 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;

  (34) 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;

  (35) 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;

  (35-1) The Department of Natural Resources, for negotiating or entering into grants, agreements, or partnerships with nonprofit entities related to conservation service opportunities;

  (35-2) The Maryland Clean Energy Center, except as provided by State Finance and Procurement Article, Title 14, Subtitle 3, Annotated Code of Maryland;

  (35-3) 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;

  (35-4) 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:

    (a) 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;

    (b) 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

    (c) 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

  (36) Other units that are specifically exempted by law.

B. 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.

C. 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:

  (1) The Maryland Health and Higher Educational Facilities Authority if no State money is to be spent on a procurement contract;

  (2) Procurement pursuant to State Finance and Procurement Article, §11-203(a)(2), Annotated Code of Maryland;

  (3) The University System of Maryland;

  (4) Morgan State University; and

  (5) St. Mary's College of Maryland.

D. The provisions of State Finance and Procurement Article, §17-502, Annotated Code of Maryland, apply to:

  (1) A unit of State government;

  (2) A county within the State;

  (3) A municipality within the State;

  (4) A bicounty or multicounty governmental agency;

  (5) A special tax district, sanitary district, drainage district, soil conservation district, and water supply district;

  (6) A public institution of higher education;

  (7) A public school; and

  (8) 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.

#### Regulation .01-1 Public Universities and Colleges.

*COMAR 21.01.03.01-1*

A. 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.

B. Applicable Provisions of State Finance and Procurement Article, Annotated Code of Maryland.

  (1) 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:

    (a) §11-205 (Collusion);

    (b) §11-205.1 (Falsification, Concealment, etc., of Material Facts);

    (c) §13-219 (Nondiscrimination Clause);

    (d) §13-225 (Retainage);

    (e) §15-226 (Prompt Payment of Subcontractors);

    (f) Title 14, Subtitle 3 (Minority Business Enterprise Participation) and Subtitle 7 (Certified Local Farm Enterprise Program);

    (g) Title 15, Subtitle 1 (Procurement Contract Administration);

    (h) Title 16 (Suspension and Debarment of Contractors);

    (i) Title 17, Subtitle 5 (eMaryland Marketplace — Use by Certain Persons); and

    (j) §14-110(b) and (c) (Preferred Provider Reporting).

  (2) State Finance and Procurement Article, Title 14, Subtitle 2 (Small Business Preference Program) applies to the University System of Maryland and Morgan State University.

C. 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.

D. The requirements of §§B and C of this regulation do not apply to:

  (1) Procurement by the University System of Maryland, Morgan State University, Baltimore City Community College, or St. Mary’s College of Maryland from:

    (a) Another unit,

    (b) A political subdivision of the State,

    (c) An agency of a political subdivision of the State,

    (d) A government, including the government of another state, of the United States, or of another country,

    (e) An agency or political subdivision of a government, or

    (f) A bistate, multistate, bicounty, or multicounty governmental agency;

  (2) 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:

    (a) Direct resale,

    (b) Remanufacture and subsequent resale, or

    (c) Overseas programs; or

  (3) Procurement by the University System of Maryland for:

    (a) 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

    (b) 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.

E. 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).

#### Regulation .02 General Applicability.

*COMAR 21.01.03.02*

A. 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.

B. 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.

C. 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.

#### Regulation .03 Organizational Applicability.

*COMAR 21.01.03.03*

A. Every State agency is subject to the provisions of these regulations unless expressly exempted by this title or by statute.

B. Specifically subject to these regulations are:

  (1) 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:

    (a) State officials, State employees, or students at a State facility, including a school, hospital, institution, or recreational facility;

    (b) Clients or patients at a State hospital or State institution;

    (c) The public at a State recreational facility;

    (d) The public at a State transportation facility, unless a revenue-producing contract involves:

      (i) 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

      (ii) A lease of State property under State Finance and Procurement Article, Title 10, Subtitle 3, Annotated Code of Maryland; or

    (e) The public at a State higher education facility unless a revenue-producing contract involves:

      (i) Research contracts or grants sponsored by third parties,

      (ii) Administration of intellectual property rights,

      (iii) Housing, food, and related supply or service contracts for conference facilities, or

      (iv) Permission for exhibitions or displays on campus property;

  (2) Each procurement by a State agency on behalf of another governmental agency or other entity; and

  (3) 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.

#### Regulation .04 Conflicts.

*COMAR 21.01.03.04*

This title does not apply to any procurement or contract to the extent of any conflict with:

A. A governing federal law, regulation, assistance instrument, or other requirement; or

B. The terms of any gift as defined in Article 1, §22, Annotated Code of Maryland.

#### Regulation .05 Waiver or Modification of Requirement for Contracts to be Performed Outside the United States.

*COMAR 21.01.03.05*

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:

A. The basic purposes of State Finance and Procurement Article, §11-201, Annotated Code of Maryland, are maintained;

B. The circumstances of the procurement require the modification or waiver; and

C. Foreign contractors are expected to be involved in the procurement.

#### Regulation .06 Waiver.

*COMAR 21.01.03.06*

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:

A. 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

B. The Office of the Attorney General approves the waiver for form and legal sufficiency.

#### Regulation .07 Renewable Energy Contracts — Waiver of Mandatory Termination Clause.

*COMAR 21.01.03.07*

A. 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.

B. 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.

#### Regulation .08 MARC Service.

*COMAR 21.01.03.08*

A. 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.

B. 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.

C. 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.