Title 21 — Subtitle 05. Procurement Methods and Project Delivery Methods

Competitive sealed bidding under COMAR 21.05.02;

Competitive sealed proposals under COMAR 21.05.03 ;

Negotiated award after unsatisfactory competitive sealed bidding;

Noncompetitive negotiations:

Small procurement procedures under COMAR 21.05.07;

Noncompetitive negotiated procurement under COMAR 21.05.12.04;

Intergovernmental cooperative purchasing under COMAR 21.05.09;

Architectural, engineering, and land surveying services qualification based selection under COMAR 21.12;

Master contracting under COMAR 21.05.13;

Auction bids under COMAR 21.05.14; or

Pay-for-success contracting under COMAR 21.05.15.

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.

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.

Definitions.

Conditions. A procurement agency may give a preference to a resident business if:

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.

Definitions.

Conditions. A procurement agency shall apply a preference to a proposal from a resident firm if:

Application.

Whether a decision has been made regarding a solicitation; and

Information that is available to the public under the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland.

The date and time of the inquiry;

The name and affiliation of the person making, or initiating, the inquiry; and

The substance and nature of the inquiry.

A record of all inquiries required to be recorded under Regulation .06 of this chapter;

A listing of every bidder or offeror solicited;

All bids or offers received;

All internal and external correspondence regarding the procurement;

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

The final contract.

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.

For the purpose of precluding or limiting participation by a minority business enterprise or a small business, a unit may not:

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.

Use. The invitation for bids is used to initiate a competitive sealed bid procurement.

Content. The invitation for bids shall include the following:

Acknowledgement of Amendments. The invitation for bids shall require the acknowledgement of the receipt of all amendments, addenda, and changes issued.

Bid Form. A form shall be provided on which the bidder shall state the price, sign and submit along with all other necessary submissions.

Bid Content.

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.

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:

Bid Samples and Descriptive Literature. Invitation to bids shall state when the bidder is required to furnish samples or descriptive literature.

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.

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.

Pre-bid conferences may be conducted by the procurement officer or designee to explain the procurement requirements.

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.

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.

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.

Pre-Bid Conference Records.

Electronic Pre-Bid Conferences.

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.

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.

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.

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.

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.

Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

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.

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.

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.

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.

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.

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.

Electronic receipt, bid opening, and posting of the information required under §B of this regulation shall satisfy the requirements of this section.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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.

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):

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.

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.

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.

Evaluation.

Unless otherwise provided in the invitation for bids, bid prices are irrevocable for a period of 90 days following bid opening.

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.

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.

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:

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.

The procurement of human, social, cultural or educational services;

Real property leases; and

Security services with an expected value that is greater than $1,000,000.

Content of the Request for Proposals. The request for proposals shall include:

Public Notice. Public notice shall be given in the same manner provided for invitation for bids under COMAR 21.05.02.04.

Proposal Preparation Time. The time for preparing proposals shall be in accordance with COMAR 21.05.02.02.

Pre-Proposal Conference. Pre-proposal conferences may be held in accordance with COMAR 21.05.02.07.

Amendments to Requests for Proposals. Amendments to requests for proposals shall be made in accordance with COMAR 21.05.02.08.

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.

Receipt of Proposals.

Evaluation.

Classification of Proposals.

Discussions.

Best and Final Offers.

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.

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.

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.

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.

Definitions. For purposes of this regulation, the following terms shall have the meanings indicated:

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.

Applicability.

Procedure.

Limitation on Overhead Cost.

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.

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.

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.

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.

Pricing Techniques.

Profit or Fee. The procurement officer, in determining profit or fee, shall follow established policy of the procurement agency or shall give consideration to:

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.

Debriefing.

A summary of the debriefing shall be made a part of the contract file.

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:

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.

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:

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.

Confidential Services.

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.

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.

A record of sole source procurements shall be maintained that lists:

The cumulative record for each fiscal year shall be maintained and submitted as required under Subtitle 13.

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.

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.

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.

Authority.

Source Selection and Contract Award.

Record and Review of Emergency Procurement.

Emergency Procurement Contracts Valued at $1,000,000 or More.

State of Emergency.

Authority.

Source Selection.

Determinations. When the expedited procurement method is used, the procurement officer shall make a written determination that:

Approval Procedure.

Record of Expedited Procurements.

In this chapter, the following words have the meanings indicated.

Terms Defined.

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.

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.

Category I Small Procurements — $5,000 or less;

Category II Small Procurements — More than $5,000 but not more than $50,000; and

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.

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.

A procurement contract of more than $100,000 may not be awarded under the authority of this chapter unless:

Solicitation Objective.

Solicitation Methods and Use.

Standards for Written Solicitations. A written solicitation used for a small procurement shall contain, at a minimum, the following elements:

Basis for Award. The basis for award shall be:

Contract Documentation. The following documentation is required for each small procurement:

Small Procurement Written Contract Content. Any purchase order or other form of contract used for small procurements shall contain the following elements:

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:

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.

Small Procurement Record.

Reporting.

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).

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.

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.

"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

"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:

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:

The nonvisual access clause is not required if the procurement officer makes a determination that:

The procurement officer may request such documentation as is reasonably necessary to implement this regulation.

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.

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:

Definitions.

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.

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.

Termination.

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.

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.

The affidavits and disclosures required by §F of this regulation shall be in substantially the same form as follows:

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.

Mercury Affidavit.

A bid or proposal submitted in response to a solicitation for janitorial services shall include at a minimum:

This regulation does not apply to procurements governed by State Finance and Procurement Article, Title 14, Subtitle 1, Annotated Code of Maryland.

In this chapter, the following terms have the meanings indicated.

Terms Defined.

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.

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.

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:

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.

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.

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:

A determination under §A(1) of this regulation shall be in writing and include:

A determination under §A(2) or (3) of this regulation shall be in writing and include:

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.

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;

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

All procedures under this title, including procedures governing contract approvals, shall apply to the State's participation.

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.

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.

The use of a State-sponsored contract by governmental entities who are potential participants is at the discretion of the governmental entity.

Participants may obtain their respective requirements by placing purchase orders or delivery orders against the State-sponsored contract in accordance with the contract.

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.

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.

In this chapter, the following terms have the meanings indicated.

Terms Defined.

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.

Cost savings resulting from projects completed below the guaranteed maximum price may be shared between the procurement agency and the construction manager.

Procurement agencies shall use the competitive sealed proposals procurement method under COMAR 21.05.03 to select the construction manager.

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.

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.

The GMP shall be based on design documents that are not less developed than 50 percent construction documents for the applicable scope of work.

The GMP shall be agreed to as an amendment to the contract between the procurement agency and the construction manager.

The construction manager assumes all risk for the cost, schedule, and performance of the trade contracts.

Trade contracts may be procured concurrently or over the life of the project.

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.

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.

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.

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.

In this chapter, the following terms have the meanings indicated.

Terms defined.

The extent to which the unit can adequately define the project requirements;

Time constraints for delivery of the project;

Capability and experience of prospective contractors with the design-build method or similar experience;

Suitability of the project for use of the design-build method of project delivery with respect to time, schedule, costs, and quality factors; and

Capability of the agency to manage the project.

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.

The invitation for bids or request for proposals shall contain at a minimum:

Locally Funded Contracts.

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.

Competitive sealed proposals under COMAR 21.05.03 is the preferred method for procuring human, social, cultural, and educational services.

Human, social, cultural, and educational services may be procured in accordance with the competitive sealed bidding procurement method, COMAR 21.05.02.

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.

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.

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.

Human, social, and educational services may be procured in accordance with the noncompetitive negotiation procurement method, Regulation .04 of this chapter.

Only human, social, or educational services may be procured by this method.

The noncompetitive negotiated procurement method may be used if:

Public Notice.

As a need for the services arises, the procurement officer may:

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.

Notice of any award, regardless of amount, under this regulation shall be published in eMaryland Marketplace.

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.

The solicitation shall:

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.

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.

This regulation applies to contracts for human and social services and, in addition to other regulations, authorizes multi-year and sole source contracts.

Multi-Year Contracts.

Sole Source Contracts.

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.

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.

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).

In this chapter, the following words have the meaning indicated.

Terms Defined.

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.

A unit of the Executive Branch may issue a secondary competition solicitation to master contractors.

The solicitation for awarding master contractor agreements shall include:

Public Notice.

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.

Pre-Proposal Conferences.

Amendments to Solicitations.

Late Proposals, Withdrawals, and Modifications.

Receipt of Proposals.

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.

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.

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.

Debriefing of Unsuccessful Offerors.

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:

The master contract shall specify the type of secondary competition solicitation to be used from the following:

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.

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.

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.

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.

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.

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.

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.

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.

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.

Procurement agencies are required to report secondary competition awards over $50,000 in eMaryland Marketplace.

A primary procurement unit may procure supplies and services using the auction bids procurement method.

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.

Subject to subsection §B of this regulation, an invitation for auction bids shall include:

In the discretion of the procurement officer, the invitation for auction bids may:

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.

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.

A procurement officer shall:

The amount of a price bid shall be available for public inspection from the time it is received.

The identity of the bidder submitting a price bid may not be available for public inspection until bidding has ended.

Price bids may not be received until after the unit has completed evaluation of the technical offers or samples.

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.

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.

Except as provided in §H of this regulation, a bid is irrevocable, after receipt, for the period specified in the invitation for auction bids.

A procurement officer may allow a bidder to correct or withdraw a bid if correction or withdrawal is:

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.

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:

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.

After bids have been received, a procurement officer may award a procurement contract on the basis of revised bids if:

If one of the conditions set forth under Regulation .04C of this chapter exists, as promptly as possible, the procurement officer shall:

An invitation for revised auction bids is not subject to the notice requirements in Regulation .02C of this chapter.

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.

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:

In this chapter, the following words have the meaning indicated.

Terms Defined.

Pay-for-success contracting shifts the risk of performance to the contractor because government payment is made only on achievement of outcomes;

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

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.

A unit may enter into a pay-for-success contract only if the procurement officer of the unit determines that:

This chapter applies only to procurements by:

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.

A unit specified in §B of this regulation may enter into a pay-for-success contract with an aggregator to procure:

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.

A pay-for-success contract executed under this regulation shall include:

A pay-for-success contract executed under this regulation may include provisions regarding:

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.

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.

The review conducted under §A of this regulation shall include:

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.

The Maryland Environmental Service shall provide copies of each review conducted under this regulation to:

“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.

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:

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.

The Secretary of Information Technology may grant approval for a competitive proof of concept procurement if the procuring unit:

A competitive proof of concept procurement:

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.

After receipt of proposals but before award of a procurement contract, a unit may:

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.