Plain Text Law

Title 21 — Subtitle 03. State Procurement Regulations and Contracts

Chapter 01. General Regulations

Regulation .01 Compliance Required.Copy Citation

A.
A State agency may not enter into a procurement contract except as permitted under State Finance and Procurement Article, Division II, and this title.

Regulation .02 Contracts Void for Noncompliance.Copy Citation

A.
Except as provided in Regulation .03 or elsewhere in this title, if a procurement violates this title, the procurement contract is void.
B.
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:
(1)
Has acted in good faith;
(2)
Did not directly contribute to a violation of this title; and
(3)
Had no knowledge of the violation before the procurement contract was awarded.

Regulation .03 Contracts Voidable for Noncompliance.Copy Citation

A.
The Board may determine that a void procurement contract is voidable if the Board determines that:
(1)
All parties have acted in good faith;
(2)
Ratification of the procurement contract would not undermine the purposes of this title; and
(3)
The violation, or series of violations, was insignificant or otherwise did not prevent substantial compliance with this title.
B.
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:
(1)
May ratify the contract if the procurement agency determines that ratification is in the best interest of the State; or
(2)
May void the contract and award the contractor compensation for actual expenses reasonably incurred under the contract, plus a reasonable profit.
C.
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:
(1)
May void the contract; or
(2)
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.

Regulation .04 Delegation of Authority.Copy Citation

A.
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.
B.
A Department head's initial determination and recommendation under §A shall be presented to the Board for final determination.
C.
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.

Regulation .05 Incorporation by Reference of Regulatory Provisions In State Procurement Contracts.Copy Citation

A.
A State procurement regulation may not change in any way a contractual obligation that was entered into before the effective date of the regulation.
B.
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.

Chapter 02. Review of Contracts for Form and Legal Sufficiency

Regulation .01 Approval Requirement.Copy Citation

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.

Regulation .02 Standard Contract Forms.Copy Citation

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.

Chapter 03. Fund Certification

Regulation .01 Certification Requirement.Copy Citation

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.

Chapter 04. Determinations

Regulation .01 Requirement.Copy Citation

Each determination required by the State Finance and Procurement Article, Division II, Annotated Code of Maryland, or by this title shall be:
A.
In writing;
B.
Based on written findings of, and signed by, the person who made the determination; and
C.
Retained in the appropriate procurement file for at least 3 years.

Regulation .02 Electronic Records.Copy Citation

The requirements of Regulation .01 of this chapter may be satisfied by electronic records and signatures.

Chapter 05. Electronic Transactions

Regulation .01 Electronic Procurements Authorized.Copy Citation

A.
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.
B.
Procurement transactions conducted by electronic means may include:
(1)
Solicitations;
(2)
Bids or proposals;
(3)
Evaluations;
(4)
Awards;
(5)
Execution;
(6)
Contract Administration;
(7)
Protests; and
(8)
Claims.

Regulation .02 Solicitation Requirements.Copy Citation

A.
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.
B.
If the electronic means are permitted or required, a solicitation or a contract shall specifically identify:
(1)
Transactions for which electronic means are authorized;
(2)
Specific means of conducting each authorized electronic transaction, including:
(a)
Facsimile;
(b)
Electronic mail;
(c)
Specific electronic bidding platforms;
(d)
Internet;
(e)
Electronic funds transfer;
(f)
Electronic data interchange; and
(g)
Any other electrical, digital, magnetic, wireless, optical, or electromagnetic means of electronically conducting transactions;
(3)
The format for electronic transmission of required information;
(4)
The information processing systems to be used to conduct the electronic procurement transactions and how to access such systems;
(5)
The time, place, and manner of receipt of electronic transactions from a bidder, offeror, or contractor; and
(6)
The fees to be charged, if any, for use of the specified electronic means.

Regulation .03 Unauthorized Transactions Prohibited.Copy Citation

A.
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.
B.
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.

Regulation .04 Fees.Copy Citation

A.
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.
B.
A fee may not be charged under §A of this regulation unless it is approved by the Board.