Unless otherwise authorized by law, all State procurement contracts shall be awarded by one of the following methods, at the procurement officer’s discretion, where applicable: 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: Sole source under COMAR 21.05.05; Emergency and expedited under COMAR 21.05.06; 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. In this regulation, the following terms have the meanings indicated. “Preference” means: A percentage preference; An employee residency requirement; or Any other law, policy, or practice that favors a resident over a nonresident. “Resident business” means a business whose principal office or principal base of operations is located in the State. “Services” means services, construction-related services, or energy performance contract services. Conditions. A procurement agency may give a preference to a resident business if: The resident business is a responsible: Bidder, under a competitive sealed bid; Offeror, under a competitive sealed proposal; or Provider of architectural or engineering services; A responsible bidder or offeror whose principal office or principal base of operations is in another state submits the lowest responsive bid or the most advantageous offer; The state in which the nonresident's principal office is located or the state in which the nonresident has its principal operation through which it would provide the goods or services gives a preference to its residents through law, policy, or practice; and The preference does not conflict with a federal law or grant affecting the procurement contract. 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. In this regulation, the following terms have the meanings indicated. “Nonresident firm” means a business entity that: Has one office that is a principal office for the entity and is not located in the State; or For an entity that has offices in multiple states, has not had a principal office located in the State for at least 6 months immediately before the date of a request for proposals. “Preference” means: A percentage preference; An employee residency requirement; or Any other law, policy, or practice that favors a resident-firm offeror over a nonresident-firm offeror. Principal Office. “Principal office” means a primary place of business that is staffed on a regular basis to provide the services that are requested by a unit in a request for proposals. “Principal office” does not include a satellite office or an office that is minimally staffed and is not open on a regular basis to provide the services that are requested by a unit in a request for proposals. “Request for proposals” means a request for architectural services or engineering services that is issued in accordance with State Finance and Procurement Article, §13-112, Annotated Code of Maryland. Resident Firm. “Resident firm” means a business entity that is licensed or otherwise authorized to provide architectural or engineering services in the State, and: For an entity that has one office, the office is located in the State; or For an entity that has offices in multiple states, has had a principal office located in the State for at least 6 months immediately before the date of a request for proposals. “Resident firm” includes a joint venture that was entered into before the date of the request for proposals for which the joint venture submits a proposal and includes one party that holds at least a 51 percent interest in the joint venture and meets the definition in §A(6)(a) of this regulation. Conditions. A procurement agency shall apply a preference to a proposal from a resident firm if: A nonresident firm is a responsible offeror determined to be the most qualified person to submit a proposal in accordance with State Finance and Procurement Article, §13-112, Annotated Code of Maryland, and the state in which the principal office of the nonresident firm is located has a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland; A resident firm is a responsible offeror that certifies it meets the requirements for a resident firm at the same time that it submits the proposal for which the preference would apply; and The nonresident firm’s state’s preference does not conflict with a federal law or grant affecting the procurement contract. Application. At the request of a unit, a nonresident firm shall provide the following documentation for the state in which the principal office of the nonresident firm is located: A copy of the current statute, resolution, policy, procedure, or executive order that establishes a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland; or A certification that the other state does not have a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland. If a resident firm qualifies for a preference established under this section and for another preference established under State Finance and Procurement Article, Division II, Annotated Code of Maryland, the unit: May not apply more than one preference to the proposal from the resident firm; and Shall apply the preference to the proposal from the resident firm that is most advantageous to the resident firm. If, when making a determination of qualification under a qualification-based selection, a unit determines that a proposal from a resident firm and a proposal from a nonresident firm are equally qualified, the unit may apply a preference to the proposal from the resident firm. A unit may not apply a preference to a proposal submitted by a resident firm if the resident firm does not submit the certification required under §B(2) of this regulation at the same time that it submits the proposal. After a solicitation for bids under COMAR 21.05.02 or for proposals under COMAR 21.05.03 or 21.12.02—21.12.05 is issued and until a procurement officer makes a recommendation for award, a procurement officer may disclose to a person outside the Board of Public Works and the Executive Branch only: 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. After a solicitation for bids under COMAR 21.05.02 or for proposals under COMAR 21.05.03 or 21.12.02—21.12.05 is issued and before contract award, a procurement officer shall record and include in the procurement file the following information from any inquiry originating from any source outside the Executive Branch: 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. The procurement file on each procurement under COMAR 21.05.02 and 21.05.03 or 21.12.02—21.12.05 may be kept electronically and shall include: 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: Bundle a procurement; Limit the number of competitive bidders or offerors; or Limit participation to a predetermined group of bidders or offerors. 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. : State Finance and Procurement Article, §§11-201, 11-205, 12-101, 13-102, 13-110, 13-202, and 14-401, Annotated Code of Maryland; Ch. 216, Acts of 2009; Chs. 633 and 624, Acts of 2018; Ch. 356, Acts of 2019 Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulation .01D amended effective May 6, 1985 (12:9 Md. R. 815) Regulation .01F adopted effective July 29, 1985 (12:15 Md. R. 1526) Regulation .02 amended effective July 29, 1985 (12:15 Md. R. 1526) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Regulation .01 amended effective October 5, 1998 (25:20 Md. R. 1533); March 11, 2019 (46:5 Md. R. 310); September 18, 2023 (50:18 Md. R. 800) Regulation .01F amended effective January 2, 2017 (43:26 Md. R. 1449) Regulation .01H amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .02 repealed effective March 11, 2019 (46:5 Md. R. 310) Regulation .02A amended effective February 24, 1997 (24:4 Md. R. 293) Regulation .04 adopted effective October 12, 1996 (23:20 Md. R. 1425) Regulation .04 amended effective January 24, 2000 (27:1 Md. R. 77); July 15, 2019 (46:14 Md. R. 623) Regulation .04-1 adopted effective July 15, 2019 (46:14 Md. R. 623) Regulations .05—.07 adopted effective October 2, 2000 (27:19 Md. R. 1729) Regulation .05 amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .05B amended effective March 11, 2019 (46:5 Md. R. 310) Regulation .07 amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .08 adopted effective January 14, 2010 (37:1 Md. R. 16) Use. The invitation for bids is used to initiate a competitive sealed bid procurement. Content. The invitation for bids shall include the following: Instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of the bids and the address where bids are to be delivered; The purchase description, delivery or performance schedule, and any special instructions necessary; and Whether award shall be made on the basis of the most favorable bid price or the most favorable evaluated bid price, whichever is applicable. If the latter basis is used, the objectively measurable criteria to be used shall be set forth in the invitation for bids; The mandatory solicitation requirements set forth in COMAR 21.05.08; and 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. Acknowledgement of Amendments. The invitation for bids shall require the acknowledgement of the receipt of all amendments, addenda, and changes issued. Bidding time is the period of time between the date of publication of the invitation for bids and the time and date set for receipt of bids. The bidding time shall be a minimum of 20 days. 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. Bids shall be based upon the specifications contained in the invitation for bids. Bids shall be typewritten or written legibly in ink. All erasures or alterations shall be initialed by the signer in ink. All bids shall be signed in ink. The bid shall be submitted in an envelope which clearly indicates that it contains a bid. If specifically permitted by the invitation for bids, electronic records and signatures satisfy the requirement for written bids and signatures, as provided in the Maryland Uniform Electronic Transactions Act, Commercial Law Article, Title 21, Annotated Code of Maryland. 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: Types of electronic transmission permitted; Formats required; Information processing systems to be used and how to access the systems; and Time, place, and manner of receipt of electronic bids. 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. Vendor lists may be compiled by the procurement agency to provide State agencies with the names of businesses that may be interested in competing for various types of State procurement contracts. A Master Vendor list shall be compiled by the Department of General Services as part of the eMaryland Marketplace. Unless otherwise provided, inclusion or exclusion of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise is capable of successfully performing a State contract. Any person desiring to do business with the State shall register with eMaryland Marketplace using the appropriate services and commodities codes indicating the types or kinds of State procurements for which the vendor wishes to be considered. Out-of-State vendors shall be registered with the Maryland Department of Assessments and Taxation before award of the contract. 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. When a pre-bid conference is held in connection with a procurement that is expected to exceed $100,000, the procurement officer shall ensure that a written record of the conference is prepared as soon as practicable and that the record is sent to all prospective bidders who were sent an invitation for bids or who are known by the procurement officer to have obtained the solicitation. When a pre-bid conference is held and a conference summary is made, the procurement officer shall ensure that the summary is sent to all prospective bidders who were sent an invitation for bids or who are known by the procurement officer to have obtained the solicitation. The record or summary of a pre-bid conference is a public record that is open to public inspection during ordinary business hours. Electronic records and transmissions of a pre-bid conference satisfy the requirements of this regulation. Electronic Pre-Bid Conferences. Electronic pre-bid conferences may be conducted if specifically permitted or required in the solicitation. An electronic pre-bid conference shall permit interactive communication between all prospective bidders or offerors and the procurement officer. If pre-bid conferences are conducted by electronic means, prospective bidders or offerors shall be notified of the: Date and time set for the electronic pre-bid conference; and Manner and duration of the interactive session. 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: If the mistake and the intended correction are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors. A bidder may be permitted to withdraw a low bid if: A mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or The bidder submits proof of evidential value which clearly and convincingly demonstrates that a mistake was made. 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): If identical favorable bids are received from an in-State certified minority business enterprise and an in-State non-minority business enterprise, or an out-of-State certified minority business enterprise and an out-of-State non-minority business enterprise, the award may be made to the certified minority business enterprise. If identical favorable bids are received from tying in-State or out-of-State certified minority business enterprises, the award may be made to the certified minority business enterprise having the greatest amount of certified minority business enterprise participation in the particular contract as determined after obtaining the information required under COMAR 21.11.03.10B. If identical favorable bids are received from tying in-State or out-of-State non-minority business enterprises, the award may be made to the non-minority business enterprise having the greatest amount of minority participation in the contract, including staff, or certified minority business enterprise subcontract participation in the contract as determined after obtaining the information required under COMAR 21.11.03.10B. If identical favorable bids are received from in-State bidders or from out-of-State bidders, and no rules for implementing a procedure for resolving a tie bid apply, a drawing shall be conducted. A witness shall be present to verify the drawing and shall certify the results on the bid tabulation sheet. 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. Following an award, a record showing the basis for determining the successful bidder shall be made a part of the procurement file. Written notice of award shall be sent to the successful bidder. Notice of award shall be made available to the public. Notices of award of all contracts pursuant to this chapter shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the execution and approval of the contract. 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. Once the technical offer or samples, or both, have been found to be acceptable, price bids from only those vendors whose technical offers or samples, or both, have been found acceptable shall be considered and evaluated in accordance with this chapter. Price bids may be solicited at the same time as technical offers, in separate sealed envelopes, or after review of technical offers, only from those whose technical offers have been found acceptable. Price information may not be opened until the technical review is complete. Price information from vendors whose technical offers have been found unacceptable shall be returned unopened. When bids are rejected, or a solicitation cancelled after bids are received, the bids which have been opened shall be retained in the procurement file, or if unopened, returned to the bidders upon request and the file so documented. 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. If only one responsive bid from a responsible bidder is received in response to an invitation for bids (including multi-step bidding), and the procurement officer determines that other prospective bidders had reasonable opportunity to respond, an award under COMAR 21.05.05 may be made to that bidder. Unless multiple or alternate bids are requested in the solicitation, these bids may not be accepted. However, if a bidder clearly indicates a base bid, it shall be considered for award as though it were the only bid submitted by the bidder. The provisions of this regulation shall be set forth in the solicitation and, if multiple or alternate bids are allowed, it shall specify their treatments. Any bid which is conditioned upon receiving award of both the particular contract being solicited and another State contract shall be deemed nonresponsive and may not be accepted. 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: The transferee assumes all of the transferor's obligations; The transferor waives all rights under the contract as against the State; and Unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond. 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. : State Finance and Procurement Article, §§12-101, 13-103, 13-210, and 14-301—14-308, Annotated Code of Maryland; Chs. 586 and 587, Acts of 2017 Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulations .02 and .04B amended as an emergency provision effective November 6, 1987 (14:24 Md. R. 2553); emergency status extended at 15:5 Md. R. 615, 15:11 Md. R. 1328, 15:18 Md. R. 2144, and 15:24 Md. R. 2766 (Emergency provisions are temporary and not printed in COMAR) Annotation: COMAR 21.05.02.12D cited in Maryland Port Administration v. John W. Brawner Contracting Co., 303 Md. 44 (1985) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Regulation .01B amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .02 amended effective February 24, 1997 (24:4 Md. R. 294) Regulation .03 amended effective October 27, 2003 (30:21 Md. R. 1530) Regulation .04 amended effective February 24, 1997 (24:4 Md. R. 294) Regulation .04B amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); March 11, 2019 (46:5 Md. R. 310) Regulation .05 repealed effective March 11, 2019 (46:5 Md. R. 310) Regulation .06 amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .07 amended effective April 7, 1997 (24:7 Md. R. 554) Regulation .07E amended and F adopted effective October 27, 2003 (30:21 Md. R. 1530) Regulation .08C amended effective July 15, 2019 (46:14 Md. R. 623) Regulation .09A amended effective October 27, 2003 (30:21 Md. R. 1530) Regulation .11 amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .14B amended effective December 25, 2023 (50:25 Md. R. 1090) Regulation .16 amended effective November 7, 2005 (32:22 Md. R. 1759) Regulation .16 amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .17A, C amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .17B amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .23 amended effective February 23, 2009 (36:4 Md. R. 355) Regulation .23 repealed effective March 16, 2015 (42:5 Md. R. 488) Regulation .23E adopted effective November 7, 2005 (32:22 Md. R. 1759) Regulation .23E amended effective April 7, 2008 (35:7 Md. R. 751) Procurement by competitive sealed proposals is the preferred method for: 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: Information concerning proposal submission requirements, including the date, time, and place for the receipt of proposals. The evaluation factors and an indication of the relative importance of each evaluation factor, including price. A work statement or scope of services statement, performance schedule, and any special instructions. A statement that discussions may be conducted with those responsible offerors that submit proposals initially judged by the procurement officer to be reasonably susceptible of being selected for award. However, if the request for proposals so notifies all offerors, discussions need not be conducted: With respect to prices that are fixed by law or regulation, except that consideration shall be given to competitive terms and conditions; If time of delivery or performance does not permit discussions; or If it can be demonstrated clearly from the existence of adequate competition or accurate prior cost experience with the particular item, that acceptance of an initial offer without negotiation would result in a fair and reasonable price. A statement of when and how price proposals should be submitted. A statement that price proposals are irrevocable for 90 days following the closing date for submission of price proposals or best and final offers, if requested. However, a procurement officer may reduce or increase the period if the procurement officer determines it to be in the State’s best interest provided that the period is reasonable and is clearly stated in the request for proposals. A statement whether multiple or alternate proposals may be submitted and their treatments. The mandatory solicitation requirements set forth in COMAR 21.05.08. All required contract terms and conditions. A requirement that the receipt of any amendments to the request for proposals be acknowledged by offerors known by the procurement officer to have been issued, or otherwise to have received, the request for proposals. 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. 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. Proposals and modifications shall either be held in a secure place if paper submission or remain locked via the eMaryland Marketplace per approved security configurations until the established due date. Proposals shall not be opened publicly but, in the event a paper submission is received, shall be opened in the presence of at least two State employees. The identity of an offeror and the register of proposals may not be disclosed before the procurement officer makes a determination recommending the award of the contract pursuant to Regulation .03F of this chapter. After contract award, proposals shall be open to public inspection subject to the provisions of the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland. Evaluation. The evaluation shall be based on the evaluation factors set forth in the request for proposals and developed from both the work statement and price. Technical proposals and price proposals shall be evaluated independently of each other. Economic Benefits Evaluation Factor. This subsection applies only to proposals that the procurement officer reasonably expects to exceed $50,000. When a point system is used in the evaluation of these proposals, up to 10 percent of the total allocable technical points may be awarded under an economic-benefits evaluation factor. If a point system is not used, an economic-benefits evaluation factor may be included in the technical evaluation factors and be ranked in its relative order of importance, as the procurement officer determines. Offerors may be asked to demonstrate in their proposals how the contract will benefit the Maryland economy. The economic-benefits evaluation factor may include consideration of such elements as: The offeror's intended procurements from Maryland subcontractors, suppliers, and joint venture partners; The number of jobs generated for Maryland residents; Tax revenues generated to Maryland and its political subdivisions; The amount or percentage of subcontract dollars placed with Maryland small businesses and Maryland MBEs. Offerors may receive up to half of the total allocable technical points under an economic-benefits evaluation factor for other elements directly or indirectly attributable to the contract that contribute to the Maryland economy. Numerical rating systems may be used but are not required. Factors not specified in the request for proposals may not be considered. Initial evaluations may be conducted and recommendation for award made by an evaluation committee. Final evaluations, including evaluation of the recommendation of the evaluation committee, if any, shall be performed by the procurement officer and the agency head or designee. Classification of Proposals. When more than one proposal has been received for a particular procurement, the procurement officer may initially classify the proposals as: Reasonably susceptible of being selected for award; or Not reasonably susceptible of being selected for award. Offerors judged by the procurement officer not to be responsible or offerors whose proposals are classified as not reasonably susceptible of being selected for award shall be so notified. Discussions. The term “qualified offerors” includes only those responsible offerors that submitted proposals initially classified by the procurement officer as reasonably susceptible of being selected for award. The term does not include those offerors that submitted proposals not reasonably susceptible of being selected for award or that are not deemed responsible. Purposes of Discussions. Discussions are held to: Assure full understanding of the procurement agency's requirements and of the qualified offerors proposals and abilities to perform; Obtain the best price for the State; and Facilitate arrival at a contract that shall be most advantageous to the State, taking into consideration price and other relevant evaluation factors set forth in the request for proposals. Conduct of Discussions. General. Qualified offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions, negotiations, and clarification of proposals. The procurement officer shall establish procedures and schedules for conducting discussions. If discussions indicate a need for substantive clarification of or change in the request for proposals, the procurement officer shall amend the request to incorporate the clarification or change. Except as provided in §C(3)(b)(ii), below, disclosure to a competing offeror of any information derived from a proposal of, or from discussions with, another offeror is prohibited. Any oral clarifications of substance of a proposal shall be confirmed in writing by the offeror. Real Property Leases. In the procurement of real property leases: The procurement officer may limit discussions and negotiations to only those responsible offerors that submitted the three best proposals based upon the procurement officer's preliminary review, in accordance with the evaluation factors, of all proposals received in response to the request for proposals; Discussions and negotiations may not result in the disclosure of any information derived from competing offerors except price and information related directly to price; The procurement officer may establish a maximum fair market rental rate for each premises offered and, after price negotiation, may reject as unacceptable any proposal that exceeds the established maximum fair market rental rate; and If no offers are received in response to the request for proposals, the procurement officer, with the approval of the agency head or designee, may solicit offers directly without republication of notice pursuant to Regulation .02B. Best and Final Offers. General. When in the best interest of the State, the procurement officer may permit qualified offerors to revise their initial proposals by submitting best and final offers. The procurement officer shall establish a common date and time for the submission of best and final offers. The procurement officer may require more than one series of submissions of best and final offers and discussions if the agency head or designee makes a written determination that it is in the State's best interest to conduct additional discussions or change the procurement agency's requirements and require another submission of best and final offers. Otherwise, discussion of or changes in the best and final offers is not allowed before award except as provided in §D(2)(a), below. If more than one submission of best and final offers is requested, an offeror's immediate previous offer shall be construed as its best and final offer unless the offeror submits a timely notice of withdrawal or another best and final offer. Real Property Leases. In the procurement of real property leases: After best and final offers are evaluated and the apparently successful offeror determined, the procurement officer may conduct further discussions and negotiations with that offeror to permit the State to obtain the best lease terms, including price, conditions, and services, subject to the requirement that any modification of the apparently successful offer be in the best interest of the State; and If negotiations and best and final offers fail to result in lease terms comparable to market rental rates in the area in which the lease is required and if the apparently successful offeror refuses to accept a lease with terms comparable to the market rental rates as determined by the procurement officer, the procurement officer may solicit additional offers directly without republication of notice pursuant to Regulation .02B. Existing real property leases may be renewed in accordance with COMAR 21.05.05. 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: “Billing overhead rate” means a tentative percentage or dollar factor which is acceptable to the procurement officer and is established for interim reimbursement purposes. “Negotiated final overhead rate” means a percentage or dollar factor which expresses the ratio or ratios mutually agreed upon by the procurement officer and the contractor after the close of the contractor's fiscal year, unless the parties mutually agree to a different period, of allowable indirect expense incurred for direct labor, manufacturing cost, cost of sales, or other appropriate allocation or distribution base. “Overhead or indirect costs” means the general group of indirect expenses such as those generated in manufacturing departments, engineering departments, tooling departments, general and administrative departments, and, if applicable, indirect costs accumulated by cost centers within these general groups. “Provisional overhead rate” means a tentative percentage or dollar factor mutually agreed upon by the procurement officer and the contractor that is negotiated for interim reimbursement pending final settlement of the actual allowable overhead. 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. A billing overhead rate or negotiated (provisional and final) overhead rate may be used in every cost-reimbursement type contract when its use: Is appropriate; and Will accomplish one or more of the purposes enumerated in this section. A billing or provisional overhead rate may be used for interim reimbursement only after the procurement officer is satisfied either on the basis of a recent review, as a result of previous audits or past experience with the particular contractor, or similar reliable data or experience obtained from other State or federal sources and included in the contract file, that: The contractor's accounting system (including items treated as indirect costs and the method of distributing them) conforms to generally accepted accounting principles; and The contractor's financial management policies and procedures, including contract financial controls, are adequate for the timely reporting of potential cost overruns and underruns to the contractor's management and to the State. If consistent with §D(2), above, a billing or provisional overhead rate or rates may be established, taking into consideration the prior year's experience, adjusted to eliminate nonrecurring costs and to reflect any new or changed conditions which may be applicable to the future. The rate or rates shall be applied to an appropriate base or bases for computation of the interim payments. The elements of indirect cost and the base or bases used in computing interim payments may not be construed as indicating the elements of expense to be distributed or the base or bases of distribution to be employed in the determination or settlement of actual allowable overhead. When the negotiated final overhead rate is determined or settled, any interim payments shall be adjusted accordingly. Procedure. The procedure for the establishment of overhead rates generally consists of a review of the contractor's overhead rate proposal and the related advisory audit report, conduct of a negotiation conference, preparation of a negotiation report or summary, and execution of contract amendments or supplemental agreements. The determination of the necessity and extent of an advisory audit report, and the extent of the use of the report, is solely the responsibility of the procurement officer. The procurement officer shall arrange for appropriate legal, pricing, technical, or other specialist personnel to assist him in the conducting the negotiation conference. After the completion of the negotiation conference, the procurement officer shall prepare a report or summary of the conference for the contract file. Limitation on Overhead Cost. Ceilings on overhead rates, beyond which the contractor shall absorb costs, may be desirable in cases of cost-sharing, new companies, recent rapid changes in rates, enhancing contractor's competitive position, or other benefits to the State. If overhead rates resulting from an audit are less than the negotiated ceiling rates, reimbursement shall be made at the lower rates. 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. General. This section describes the principal price and cost evaluation techniques and the circumstances under which each may be used. They are equally applicable to initial and subsequent price negotiations. “Adequate price competition” means competition between two or more responsible offerors that submitted proposals initially classified by the procurement officer under Regulation .03B as reasonably susceptible of being selected for award. Requirements for Price or Cost Analysis. General. A price or cost analysis should be performed in connection with every negotiated procurement. Cost analysis shall be performed in accordance with §E(2)(c) when cost or pricing data is required to be submitted. Price analysis shall be used in all other instances to determine the reasonableness of the proposed contract price. Price analysis also may be useful in corroborating the overall reasonableness of a proposed price when the determination of reasonableness was developed through cost analysis. “Price analysis” is the process of examining and evaluating a prospective price with or without evaluation of the separate cost elements and proposed profit of the individual offeror whose price is being evaluated. “Cost analysis” is the review and evaluation of a contractor's cost or pricing data and of the judgmental factors applied in projecting cost or pricing data to the estimated costs, which shall allow the formation of an opinion as to the degree to which the contractor's proposed costs represent what performance of the contract should cost, assuming reasonable economy and efficiency. Cost or Pricing Data. The requirements of this subsection need not be applied if the procurement officer determines that the price negotiated is based on: Adequate price competition; Established catalog or market prices of commercial items sold in substantial quantities to the general public; or Prices set by law or regulation. The procurement officer shall require the offeror or contractor, as the case may be, to submit written cost or pricing information or to specifically identify such in writing if actual submission of the data is impracticable, and to certify that, to the best of the offeror's or contractor's knowledge and belief, the cost or pricing data submitted or identified was accurate, complete and current before: The award of any negotiated contract expected to exceed $100,000 in amount or a smaller amount set by the procurement officer; or The pricing of any modification to any formally advertised or negotiated contract, whether or not cost or pricing data was required in connection with the initial pricing of the contract, when the modification involves an aggregate increase or decrease in costs, plus applicable profits, expected to exceed $100,000. Certification of Current Cost or Pricing Data. When required, certification as contemplated by COMAR 21.06.04.01 shall be included in the contract file together with the documents supporting the negotiation. Defective Cost or Pricing Data. If the certified cost or pricing data is subsequently found to have been inaccurate, incomplete, or noncurrent as of the effective date of the certificate, the State shall be entitled to adjustment of the negotiated price, including profit or fee, to exclude any sum by which the contract price was increased because of the defective data. Evaluation and Pricing of Individual Contracts. Each contract shall be priced separately and independently, and no consideration shall be given to losses or profits realized or anticipated in the performance of other contracts. This prohibition neither prevents the negotiation of fixed overhead and other rates applicable to several contracts during annual or other specific periods nor prohibits forward pricing agreements applicable to several contracts. A proposed price reduction under another contract or other contracts may not be used as an evaluation factor. Subcontracting Considerations in Cost Analysis. The procurement officer shall, when appropriate, solicit from the offeror or contractor information concerning: Purchasing practices; The principal components to be subcontracted and the contemplated subcontractors, including: The degree of competition obtained, Cost or price analysis or price comparisons accomplished, including accurate, complete, and current cost or pricing data, and The extent of subcontract supervision; The types of subcontracts; The estimated total extent of subcontracting, including procurement of purchased parts and materials. Sole Source Items. When purchases of standard commercial or modified standard commercial items are to be made from sole source suppliers, negotiations shall be based on the contractor's price lists and discount or rebate arrangements and conducted on the basis of “most favored customer” or similar practices. Profit or Fee. The procurement officer, in determining profit or fee, shall follow established policy of the procurement agency or shall give consideration to: Effect of competition; Degree of risk; Nature of work to be performed; Extent of State assistance; Extent of the contractor's investment; Credibility of estimates; Character of contractor's business; Contractor's performance; and Subcontracting. 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. Debriefing shall: Be limited to discussion of the unsuccessful offeror's proposal and may not include specific discussion of a competing offeror's proposal; Be factual and consistent with the evaluation of the unsuccessful offeror's proposal; and Provide information on areas in which the unsuccessful offeror's technical proposal was deemed weak or deficient. Debriefing may not include discussion or dissemination of the thoughts, notes, or rankings of individual members of an evaluation committee, but may include a summary of the procurement officer's rationale for the selection decision and recommended contract award. A summary of the debriefing shall be made a part of the contract file. State Finance and Procurement Article, §§12-101, 13-104, and 13-105, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulation .03C amended effective June 4, 1984 (11:11 Md. R. 963) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Regulation .01 amended effective March 11, 2019 (46:5 Md. R. 310); March 3, 2025 (52:4 Md. R. 221) Regulation .02A amended effective May 2, 2022 (49:9 Md. R. 531); September 18, 2023 (50:18 Md. R. 800) Regulation .02G amended as an emergency provision effective April 7, 1989 (16:8 Md. R. 906); amended permanently effective June 26, 1989 (16:12 Md. R. 1338) Regulation .02G amended effective January 26, 1998 (25:2 Md. R. 79); March 11, 2019 (46:5 Md. R. 310); June 29, 2020 (47:13 Md. R. 643) Regulation .03A amended effective October 12, 1996 (23:20 Md. R. 1426); March 11, 2019 (46:5 Md. R. 310) Regulation .03C amended effective May 2, 2022 (49:9 Md. R. 531) Regulation .03F amended effective December 25, 2023 (50:25 Md. R. 1090) Regulation .03G amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751) Regulation .06A amended effective January 26, 1998 (25:2 Md. R. 79); April 7, 2008 (35:7 Md. R. 751) 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: There are no additional funds available to permit an award to the responsible bidder submitting the most favorable bid or most favorable evaluated bid; or Any delay resulting from a resolicitation under revised specifications or quantities under competitive sealed bidding as provided in COMAR 21.05.02 would be fiscally disadvantageous or would not otherwise be in the best interest of this State. 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. An invitation for revised bids based on revised specifications or quantities shall be issued as promptly as possible, and shall provide for a prompt response to the revised requirements. If the award is to be made without conducting discussions, the invitation for revised bids shall so state. Discussions may not be conducted with bidders after revised bids have been submitted unless the procurement officer determines that there is compelling need for further negotiation. If there is more than one bidder, any discussions concerning revised specifications or quantities shall be conducted with all responsible bidders. Bidders shall be accorded fair and equal treatment with respect to any discussions. An award shall be made upon the basis of the most favorable bid price or most favorable evaluated bid price submitted by a responsive and responsible bidder. Tie bids shall be resolved pursuant to COMAR 21.05.02.14. Notice of the award shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the execution and approval of the contract. State Finance and Procurement Article, §§12-101 and 13-103, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulation .01B amended effective June 4, 1984 (11:11 Md. R. 963) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Regulation .04 amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751) If the procurement officer determines that a competitive source selection method cannot be used because there is only one available source for the subject of the contract or if the proposed contract is one that is contemplated by Regulation .02C or D of this chapter, the procurement officer, after obtaining the approval of the agency head and all other approvals required by law or regulation, may award a contract without competition to the sole source. 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: When only one source exists which meets the requirements; When the compatibility of equipment, accessories, or replacement parts is the paramount consideration; When a sole vendor's item is needed for trial use or testing; When a sole vendor's item is to be procured for resale; When certain public utility services are to be procured and only one source exists. 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. A procurement agency, with the prior written approval of the Office of the Attorney General, may enter into a sole source contract to retain the confidential services of a contractor to represent the interests of the State in connection with threatened or pending litigation. A procurement agency, with the prior written approval of the Office of the Attorney General, may enter into a sole source contract to retain the confidential services of a contractor to represent the interests of the State in connection with: Appraisal of real property contemplated for acquisition by the State; or Collective bargaining. If the procurement agency reasonably can anticipate a continuing need for the services described in §C(2) of this regulation, this section does not apply. 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. The procurement officer shall conduct negotiations, as appropriate, as to price, delivery, and terms. 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: Each contractor's name; The amount and type of each contract; A listing of the items procured under each contract; and The identification number of each contract file. The cumulative record for each fiscal year shall be maintained and submitted as required under Subtitle 13. State Finance and Procurement Article, §§12-101 and 13-107, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulation .01 amended effective January 9, 1989 (15:27 Md. R. 3138) Regulation .02C and D adopted effective January 9, 1989 (15:27 Md. R. 3138) Regulation .04A amended effective January 9, 1989 (15:27 Md. R. 3138); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); January 2, 2017 (43:26 Md. R. 1449) Regulation .04B amended effective January 9, 1989 (15:27 Md. R. 3138) 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. Any procurement agency may make an emergency procurement when an emergency arises and the agency's resulting need cannot be met through normal procurement methods. The procurement officer may award an emergency contract or make an emergency contract modification only with the approval of the agency head or designee. Except when delaying a procurement by up to 48 hours would likely result in imminent harm, after obtaining the approval of the head of the unit and before making an emergency procurement, the procurement officer shall obtain the approval of the use of emergency procurement procedures from the Chief Procurement Officer, or the Chief Procurement Officer’s designee. Within 48 hours after receiving a request to use emergency procurement procedures, the Chief Procurement Officer or designee shall approve or disapprove the request. If the Chief Procurement Officer or designee does not approve or disapprove the request to use emergency procurement procedures within 48 hours after receiving the request, the request shall be considered to be approved. Source Selection and Contract Award. The procedure used shall assure that the required items are procured in time to meet the emergency. Given this constraint, such competition as is possible and practicable shall be obtained, including by making reasonable efforts to solicit at least three oral quotes. Before awarding an emergency procurement contract to a prospective contractor, the procurement officer shall evaluate the contractor’s ability to perform the requirements of the contract based on: The length of time the contractor has been in business; The contractor’s level of experience providing the types and amounts of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services required under the contract; and The contractor’s history of successful procurement contracts with the State and other jurisdictions. The procurement officer shall execute a written contract with the successful contractor which includes the terms of the emergency procurement and provisions addressing the contractor’s ability to perform the requirements of the contract within the emergency time frame. Record and Review of Emergency Procurement. Notice of award shall be published in eMaryland Marketplace by the procurement agency on the day of execution and approval of the contract, or as soon as practicable thereafter, but not more than 30 days after the execution and approval of the contract. A record of each emergency procurement shall be made within 7 days of award and shall set forth: The basis and justification for the emergency procurement including the date the emergency first became known; A listing of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services procured; The names of all persons solicited and a justification if the solicitation was limited to one person; The prices and times of performance proposed by the persons responding to the solicitation; The name of and basis for the selection of a particular contractor; The amount and type of the contract or contract modification; A listing of any prior or related emergency contracts, including all contract modifications, executed for purposes of avoiding or mitigating the particular emergency including the aggregate costs; The identification number, if any, of the contract file; The documented approval of the agency head or designee, as required by §B(2) of this regulation; and The documented approval of the Chief Procurement Officer or designee when applicable, as required by §B(3) of this regulation. An action agenda item, including the information required by §D(2) of this regulation, shall be forwarded by the procurement agency to the Board and to the appropriate control agency within 15 days of emergency contract award or emergency modification in accordance with COMAR 21.02.01.05A(3)(a). At the Board's request, the appropriate control agency shall review emergency procurement action agenda items and provide recommendations to the Board. The Board may direct the procurement agency or the appropriate control agency to take any action the Board deems appropriate concerning an emergency procurement. If supplies or commodities procured under an emergency procurement contract are not delivered and used within 1 month after the date the contract is awarded, the procuring unit shall: Prepare a report describing the delivery and use status of supplies and commodities procured under the contract at least once per month until all supplies and commodities have been delivered and used; and Submit the reports prepared under §D(6)(a) of this regulation to the Board, the appropriate control agency, and, in accordance with State Government Article, §2-1257, Annotated Code of Maryland, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee. Emergency Procurement Contracts Valued at $1,000,000 or More. In advance of or concurrent with the execution of an emergency procurement contract that is valued at $1,000,000 or more, a unit may not pay an amount that exceeds $2,000,000, plus 30 percent of the contract value in excess of $2,000,000. Unless authorized by the Board, the unit may not make any additional payment under the contract until at least 30 days after the execution of the contract. Not later than 7 days after awarding an emergency procurement that is valued at $1,000,000 or more, a unit shall submit a copy of the contract to the Board with an action agenda item, including the information required by §D(2) of this regulation, in accordance with COMAR 21.02.01.05A(3)(a). The Board may review an emergency procurement contract submitted under §E(3) of this regulation at a regularly scheduled meeting of the Board or at an emergency meeting called for that purpose, and direct the unit or the appropriate control agency to take any action, including canceling or rescinding the contract, that the Board deems appropriate. State of Emergency. When the Governor or the head of a unit authorizes an emergency procurement during a state of emergency in order to prepare for or address the state of emergency, the Governor or the head of the unit shall provide written notice to the Legislative Policy Committee within 72 hours after the earlier of the execution of the contract or the expenditure of funds. The notice required by §F(1) of this regulation shall include: The name, business address, and, if applicable, website address of the awarded vendor; The dollar value of the contract; A description of how the funds are to be used; and An explanation of the reasons the procurement is necessary to prepare for or address the emergency. After an emergency procurement contract is executed in order to prepare for or address the state of emergency: If requested by the Legislative Policy Committee, the Governor or head of the unit shall provide a copy of the contract to the Legislative Policy Committee; and The Legislative Policy Committee may request that the Office of Legislative Audits conduct an audit of the emergency procurement. Authority. A procurement officer may make an expedited procurement when the following conditions have been met: The procurement officer has made the written determination required by §C of this regulation, and the agency head or designee has approved the determination; and The Board has approved the use of the expedited procurement method. The Board may approve expedited procurements on a project-by-project or contract-by-contract basis. It may approve or deny a request by the procurement agency to make an expedited procurement and may stipulate any conditions or limitations on the procurement which it deems appropriate. Source Selection. Competitive solicitation of bids or offers shall be the preferred method of making an expedited procurement and may include: Public notice in a newspaper in general circulation in the area in which the supplies, maintenance, services, commodities, construction, or construction-related services are to be furnished; Notice by posting on the procurement agency's bid board, if any; and Direct solicitation by mail from persons who are believed to be qualified to perform the contract. A noncompetitive source selection may be made if the time between the date the need to make an expedited procurement first became known to the procurement agency and the date when the contract must be begun is insufficient to permit a competitive solicitation, or for some other reason that precludes use of competitive solicitation. Determinations. When the expedited procurement method is used, the procurement officer shall make a written determination that: Explains why an expedited procurement best serves the public interest and why the need to make an expedited procurement outweighs the benefits of making the procurement by competitive sealed bidding or competitive sealed proposals; and Justifies any noncompetitive selection. Approval Procedure. The procurement agency shall obtain the Board's approval before using the expedited procurement method. The procurement agency shall request the Board's approval of an expedited procurement in accordance with COMAR 21.02.01.05A(3)(b). The approval request shall include: The determination required by §C of this regulation, including the documented approval of the agency head or designee as required by §A(1)(a) of this regulation. A detailed statement of the expected impact upon the State if the procurement is not made on an expedited basis. The statement shall include an estimate of lost revenues, if applicable. Record of Expedited Procurements. Notice of award shall be published in eMaryland Marketplace by the procurement agency not more than 30 days after the approval and execution of the contract. A record of each expedited procurement contract shall be made as soon as practicable and shall set forth: The date the Board approved the use of the expedited procurement method; The date of award; The selected contractor's name; The amount and type of the contract; The names of persons solicited and their responses; A listing of supplies, services, maintenance, commodities, construction, or construction-related services procured under the contract; The basis for the selection of a particular contractor; and The identification number, if any, of the contract file. The record in §E(2) of this regulation shall be reported to the Board within 30 days of contract award as an appendix to the appropriate control agency’s regular action agenda. Public Safety Article, §14-117; State Finance and Procurement Article, §§12-101 and 13-108; Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Chapter revised effective May 6, 1985 (12:9 Md. R. 815) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Chapter revised effective April 24, 1995 (22:8 Md. R. 598) Regulation .01 amended effective February 24, 1997 (24:4 Md. R. 294); March 11, 2019 (46:5 Md. R. 310); May 2, 2022 (49:9 Md. R. 531) Regulation .01B amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .02 amended effective September 5, 2022 (49:18 Md. R. 819) Regulation .02A, D amended effective April 7, 2008 (35:7 Md. R. 751); May 2, 2022 (49:9 Md. R. 531) Regulation .02D amended effective November 7, 2005 (32:22 Md. R. 1759) Regulation .03 amended effective September 5, 2022 (49:18 Md. R. 819) Regulation .03A amended effective December 25, 2000 (27:25 Md. R. 2284) Regulation .03E amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751) In this chapter, the following words have the meanings indicated. Terms Defined. “Competitive bidding” means use of a small procurement solicitation to obtain oral or written bids (including sealed bids) from vendors. “Item” means supplies, commodities, services, information technology, maintenance, construction, and construction-related services. “Oral solicitation” means the procurement officer's oral description of the procurement to a vendor who reasonably may be expected to provide the required item. “Small procurement” means the use of the procedures set forth in this chapter to: Obtain items reasonably expected by the procurement officer to cost $100,000 or less; With respect to those procurements set forth in COMAR 21.01.03.03B, provide annual gross revenues to the contractor of $100,000 or less; With respect to the State Retirement Agency for purposes of administering Title 29, Subtitle 1 of the State Personnel and Pensions Article, spend $100,000 or less during a fiscal year for: Expenses related to independent medical evaluations by a physician; and Any expenses related to testimony by the physician at administrative hearings on behalf of the Agency; With respect to the Department of Natural Resources, procure contracts for capital projects or maintenance with a value of $200,000 or less; or With respect to the Department of General Services or Department of Transportation, procure construction with a value of $200,000 or less. “Written solicitation” means the written description of the procurement. The departments adopt this chapter to govern small procurements. 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. Small procurements are classified in three categories: 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: The unit obtains prior approval of the agency head or designee, and, if not a department, the appropriate control authority; The Department of General Services or Department of Transportation procures construction valued at $200,000 or less; or The Department of Natural Resources procures capital projects of maintenance valued at $200,000 or less. Solicitation Objective. Competition. The objective of soliciting bids or offers is to foster competition in obtaining needed items in a cost effective manner. In all small procurements, competition should be sought to the extent practical considering factors such as availability of vendors, dollar value of the procurement, cost of administering the procurement, and time available to make the procurement including delivery time. For Categories II and III responsive bids or acceptable offers from at least two vendors should be obtained. A solicitation shall include a summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries. Minority Business Enterprises. In addition to the solicitation objective set forth in §A(1) of this regulation, each procurement agency shall solicit bids or offers from a sufficient number of certified minority business enterprises listed in the Central Directory, under COMAR 21.11.03.06. Single Bid. If only one responsive bid or acceptable offer is received in response to a solicitation, an award may be made to the bidder or offeror if the procurement officer determines that the price submitted is fair and reasonable, and that the other vendors had reasonable opportunity to respond. Small Businesses. In addition to the solicitation objectives set forth above, procurement agencies shall, consistent with law, attempt to solicit bids or offers from small businesses selected from the certified small business list under COMAR 21.11.01.04. Solicitation Methods and Use. The acceptable methods of soliciting bids or offers from vendors for small procurements are oral solicitation and written solicitation, as defined in Regulation .01 of this chapter. Procurement agencies may use either or both of the solicitation methods specified in §B(1) of this regulation for Categories I and II Small Procurements. If both oral and written solicitations are used, procurement agencies shall ensure that the solicitation terms are consistent. Except for sole source procurement, procurement agencies shall use written solicitations in attempting to achieve Category III solicitation objectives. Oral solicitations may be used as an addition to the written solicitations. If both oral and written solicitations are used, procurement agencies shall ensure that the solicitation terms are consistent. All Category III solicitations shall be posted on eMaryland Marketplace at least 3 days before bids or offers are due. Procurement agencies are not required to post solicitations for Categories I and II small procurements on eMaryland Marketplace. Electronically transmitted bids or offers may be accepted for small procurements if the procurement agency specifically authorizes electronically transmitted bids or offers in the solicitation. Standards for Written Solicitations. A written solicitation used for a small procurement shall contain, at a minimum, the following elements: A description of the item requested; Time, date, place, and form of response requested; The basis for award as provided under §D of this regulation; The provisions concerning mercury content under COMAR 21.11.07; and The name and telephone number of the procurement officer. Basis for Award. The basis for award shall be: Category I Small Procurement — The judgment of the procurement officer; Categories II and III Small Procurements — The most favorable bid price or evaluated bid price, or most advantageous offer, as specified in the solicitation; or In the event of tie bids, the provisions of COMAR 21.05.02.14 shall determine the successful bidder. Contract Documentation. The following documentation is required for each small procurement: Small Procurements of $5,000 or less: For oral solicitations — a contract shall be documented by a receipt, invoice, repair order, packing slip, or voucher; and For written solicitations — a contract shall be documented by a purchase order or contract; and Small Procurements Exceeding $5,000. A written contract is required in the form of a purchase order or other form of contract. Small Procurement Written Contract Content. Any purchase order or other form of contract used for small procurements shall contain the following elements: Identification of the parties to the contract including contractor taxpayer identification number; the taxpayer identification number shall be the Social Security number for individuals and sole proprietors and the federal employer identification number for all other types of organizations; A statement of the scope of the contract; The dollar value of the contract, if known, or estimated dollar value if the actual value is not known; The term of the contract, including completion or delivery date; Name of the procurement officer responsible for the contract; and A clause containing the following: “The Contractor shall comply with the provisions of State Finance and Procurement Article, Title 19, Annotated Code of Maryland.” 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: Termination for Nonappropriation. “If funds are not appropriated or otherwise made available to support continuation in any fiscal year succeeding the first fiscal year, this Contract shall be terminated automatically as of the beginning of the fiscal year for which funds are not available. The Contractor may not recover anticipatory profits or costs incurred after termination.” Maryland Law Prevails. “The law of Maryland shall govern the interpretation and enforcement of this Contract.” Disputes. “Disputes arising under this Contract shall be governed by State Finance and Procurement Article, Title 15, Subtitle 2, Part III, Annotated Code of Maryland, and by COMAR 21.10. Pending resolution of a dispute, the Contractor shall continue to perform this Contract, as directed by the Procurement Officer.” Changes. “This Contract may be amended only with the written consent of both parties. Amendments may not significantly change the scope of the Contract (including the Contract price).” Termination for Default. “If the Contractor does not fulfill obligations under this Contract or violates any provision of this Contract, the State may terminate the Contract by giving the Contractor written notice of termination. Termination under this paragraph does not relieve the Contractor from liability for any damages caused to the State. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B.” Nondiscrimination. “The Contractor shall comply with the nondiscrimination provisions of federal and Maryland law.” Anti-Bribery. “The Contractor certifies that, to the Contractor's best knowledge, neither the Contractor; nor (if the Contractor is a corporation or partnership) any of its officers, directors, or partners; nor any employee of the Contractor who is directly involved in obtaining contracts with the State or with any county, city, or other subdivision of the State, has been convicted of bribery, attempted bribery, or conspiracy to bribe under the laws of any state or of the United States.” Termination for Convenience. “The State may terminate this Contract, in whole or in part, without showing cause upon prior written notice to the Contractor specifying the extent and the effective date of the termination. The State shall pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination and all reasonable costs associated with termination of the Contract. However, the Contractor may not be reimbursed for any anticipatory profits which have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2).” Prompt Payment of Subcontractors. This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §G(9)(a)—(d) of this regulation, the terms “undisputed amount”, “prime contractor”, “contractor”, “subcontractor”, and “supplier” have the meanings stated in COMAR 21.10.08.01. A contractor shall promptly pay its subcontractors and suppliers an undisputed amount to which a subcontractor or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract. If a contractor fails to make payment within the period prescribed in §G(9)(b) of this regulation, a subcontractor or supplier may request a remedy in accordance with COMAR 21.10.08. A contractor shall include in its subcontracts at any tier for work under this contract, wording that incorporates the provisions, duties, and obligations of §G(9)(a)—(d) of this regulation, State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. 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. Each procurement agency shall establish written procedures for maintaining small procurement records. These records shall be maintained by the using agency until audited or for a period of 3 years after final payment, whichever occurs last. Minimum record requirements applicable to small procurement contracts are as follows: Category I Small Procurement Contracts Resulting from Oral Solicitations: Name and telephone number of person expending funds; Date of contract award; Name and address of contractor; Receipt, invoice, repair order, packing slip, or voucher; Brief description of item procured. Category I Small Procurement Contracts Resulting from Written Solicitations: Name and telephone number of responsible procurement officer; Date of contract award; Name and address of contractor; Purchase order or contract; Invoice and receiving documentation; Brief description of item procured; Copy of written solicitation, if used; Copy of bid board or newspaper notice, if used. Category II and III Small Procurement Contracts Resulting from Written Solicitations: Name and telephone number of responsible procurement officer; Date of contract award; Name and address of contractor; Purchase order or contract; Invoice and receiving documentation; Description of item procured; Bid or offer documentation including names of all vendors directly solicited, copies of any written bids or offers received, bid or offer amounts, statement signed by the procurement officer detailing basis of award, identification of minority business enterprises and small businesses directly solicited, and, when only one bid or offer is received in response to a solicitation, an explanation for the lack of a greater response; Copy of written solicitation; Copy of eMaryland Marketplace notice, and copy of bid board or newspaper notice, if used; A brief written justification if the procurement was sole source; For Category III Small Procurements, a copy of certification by the appropriate fiscal authority of fund availability to satisfy the contractual requirement. Reporting. Procurement agencies are not required to report small procurements in the annual reports prescribed by State Finance and Procurement Article, §15-111, Annotated Code of Maryland. Procurement agencies are not required to report small procurement awards in eMaryland Marketplace. Contract modifications to a small procurement contract shall be administered in accordance with the delegations specified in COMAR 21.02.01.04 and the procedures promulgated by the Departments. State Finance and Procurement Article, §§12-101, 13-109, 14-301—14-308, 14-406, and 15-226, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Regulation .01B amended effective February 24, 1997 (24:4 Md. R. 294); June 29, 1998 (25:13 Md. R. 996); February 23, 2009 (36:4 Md. R. 355); September 21, 2009 (36:19 Md. R. 1438); July 23, 2012 (39:14 Md. R. 839); March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369) Regulation .03C repealed effective February 24, 1997 (24:4 Md. R. 294) Regulation .04 amended effective February 24, 1997 (24:4 Md. R. 294); September 21, 2009 (36:19 Md. R. 1438); April 29, 2024 (51:8 Md. R. 369) Regulation .04C amended effective February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310) Regulation .05B amended effective February 24, 1997 (24:4 Md. R. 294); February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369) Regulation .06 amended effective September 21, 2009 (36:19 Md. R. 1438) Regulation .06A amended effective September 2, 1991 (18:17 Md. R. 1922); May 20, 1996 (23:10 Md. R. 732); February 24, 1997 (24:4 Md. R. 294); March 18, 2002 (29:5 Md. R. 505); July 4, 2005 (32:13 Md. R. 1117); September 18, 2023 (50:18 Md. R. 800) Regulation .06B amended effective February 24, 1997 (24:4 Md. R. 294); April 7, 2008 (35:7 Md. R. 751); July 23, 2012 (39:14 Md. R. 839); April 28, 2014 (41:8 Md. R. 473) Regulation .06C amended effective May 26, 2003 (30:10 Md. R. 668) Regulation .06D amended effective March 18, 2002 (29:5 Md. R. 505) Regulation .06E amended effective June 29, 1998 (25:13 Md. R. 996); December 25, 2000 (27:25 Md. R. 2284) Regulation .06F amended effective August 2, 1993 (20:15 Md. R. 1221); April 7, 2008 (35:7 Md. R. 751) Regulation .06G amended effective November 22, 1993 (20:23 Md. R. 1806); September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221) Regulation .06I amended effective February 24, 1997 (24:4 Md. R. 294); June 29, 1998 (25:13 Md. R. 996); July 23, 2012 (39:14 Md. R. 839) Regulation .06J amended effective February 24, 1997 (24:4 Md. R. 294); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751) A public information act notice is a mandatory provision for all requests for proposals. The following notice is preferred: “Offerors should give specific attention to the identification of those portions of their proposals that they deem to be confidential, proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the State under the Access to Public Records Act, State Government Article, Title 10, Subtitle 6, Annotated Code of Maryland.” 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. A minority business enterprise notification is a mandatory provision for all solicitations as follows: “Minority business enterprises are encouraged to respond to this solicitation”. Any solicitation containing an MBE subcontract participation goal, except small procurements made under COMAR 21.05.07, shall include a clause the same as or similar to the following: "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 information and communication technology is not available with nonvisual access because the essential elements of the information and communication technology are visual and nonvisual equivalence cannot be developed; or The cost of modifying the information and communication technology for compatibility with software and hardware used for nonvisual access would increase the cost of the procurement by more than 15 percent. The procurement officer may request such documentation as is reasonably necessary to implement this regulation. An arrearages clause is a mandatory provision for all solicitations. The language may be varied but shall contain the following information: “By submitting a response to this solicitation, a vendor shall be deemed to represent that it is not in arrears in the payment of any obligation due and owing the State of Maryland, including the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of the contract if selected for contract award.” 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. In this regulation, the following terms have the meanings indicated. Terms Defined. “Conflict of interest” means that, because of other activities or relationships with other persons: A person is unable or potentially unable to render impartial assistance or advice to the State; The person's objectivity in performing the contract work is or might be otherwise impaired; or A person has an unfair competitive advantage. Person. “Person” has the meaning stated in COMAR 21.01.02.01B(64). “Person” includes a bidder, offeror, contractor, consultant, or subcontractor or subconsultant at any tier, and also includes an employee or agent or any of them if the employee or agent has or will have the authority to control or supervise all or a portion of the work for which a bid or offer is made. 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. After award, the State may terminate the contract, in whole or in part, if it considers termination necessary to avoid an actual or potential conflict of interest. If the contractor knew or reasonably could have been expected to know of an actual or potential conflict of interest before or after award and did not disclose it or misrepresented relevant information to the procurement officer, the State may terminate the contract for default, institute proceedings to debar the contractor from further State contracts, or pursue other remedies as may be permitted by law or the contract. 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: Labor costs; Cost of cleaning supplies; and Projected labor hours to satisfactorily complete the work. This regulation does not apply to procurements governed by State Finance and Procurement Article, Title 14, Subtitle 1, Annotated Code of Maryland. : Election Law Article, §§14-101—14-108; State Finance and Procurement Article, §§3-412, 3.5-311, 11-206, 12-101, 13-207, 13-218, 13-221, 14-303, 14-308, 14-406, 16-102, 16-202, 16-203, 17-401—17-402, and Title 19; Annotated Code of Maryland; Ch. 293, Acts of 2009 Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulation .05 amended as an emergency provision effective March 17, 1982 (9:6 Md. R. 612); emergency status expired June 30, 1982; adopted permanently effective July 5, 1982 (9:13 Md. R. 1354) Regulations .05A and B amended effective May 6, 1985 (12:9 Md. R. 816) Regulations .06 and .07 adopted effective June 4, 1984 (11:11 Md. R. 963) Regulations .01—.07 repealed and new Regulations .01—.07 adopted effective January 9, 1989 (15:27 Md. R. 3138) Regulation .02A amended and C adopted effective May 20, 1996 (23:10 Md. R. 733) Regulation .04 amended effective March 18, 2002 (29:5 Md. R. 505); January 2, 2017 (43:26 Md. R. 1449) Regulation .05 amended effective August 2, 1993 (20:15 Md. R. 1221) Regulation .05 repealed effective November 20, 1994 (21:23 Md. R. 1936) Regulation .05 adopted effective March 8, 1999 (26:5 Md. R. 393) Regulation .05A, B amended September 18, 2023 (50:18 Md. R. 800); April 29, 2024 (51:8 Md. R. 369) Regulation .07 amended effective March 16, 2015 (42:5 Md. R. 488) Regulation .07B amended effective October 1, 1990 (17:19 Md. R. 2322); August 2, 1993 (20:15 Md. R. 1221); November 20, 1994 (21:23 Md. R. 1936); January 26, 1998 (25:2 Md. R. 79); November 7, 2005 (32:22 Md. R. 1759); March 12, 2007 (34:5 Md. R. 562); April 7, 2008 (35:7 Md. R. 751); May 31, 2010 (37:11 Md. R. 766); August 8, 2011 (38:16 Md. R. 946); July 23, 2012 (39:14 Md. R. 839); May 13, 2013 (40:9 Md. R. 789); January 2, 2017 (43:26 Md. R. 1449); March 3, 2025 (52:4 Md. R. 221) Regulation .08 adopted as an emergency provision effective August 8, 1997 (24:18 Md. R. 1294); emergency status rescinded effective October 16, 1997 (24:23 Md. R. 1608) Regulation .08 adopted effective July 9, 2001 (28:13 Md. R. 1216) Regulation .08B amended effective January 2, 2017 (43:26 Md. R. 1449) Regulation .08B, E amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .09 adopted effective May 26, 2003 (30:10 Md. R. 668) Regulation .10 adopted effective March 5, 2012 (39:4 Md. R. 338) In this chapter, the following terms have the meanings indicated. Terms Defined. “Governmental entity” means: The federal government or an agency or other instrumentality of the federal government; Another state or an agency or other instrumentality of another state; A bistate or multistate agency; A county, municipal corporation, or other political subdivision of the State or of another state, or an agency or other instrumentality of the political subdivision; A bicounty or multicounty agency; A primary procurement unit or the University System of Maryland; or An affiliation, alliance, consortium, or group composed solely of governmental entities that is established for purposes of promoting intergovernmental cooperative purchasing. “Intergovernmental cooperative purchasing agreement” means a contract: That is: Entered into by at least one governmental entity and a person selected in a manner that is consistent with the purposes set forth under COMAR 21.01.01.03; Available by its express terms for use by the governmental entity entering the contract and at least one additional governmental entity which may be, but need not be, an original party to the contract; and Intended to promote efficiency and savings that can result from intergovernmental cooperative purchasing; or Between a primary procurement unit and a person who, at the time the intergovernmental cooperative purchasing agreement is awarded, has a contract with the federal government or an agency or other instrumentality of the federal government, and who agrees to provide the unit with identical prices, terms, and conditions as stipulated in the federal contract. “Lead jurisdiction” means a governmental entity that sponsors or conducts an intergovernmental purchasing agreement and on behalf of the participants issues, receives, opens, and evaluates bids or proposals received in response to a solicitation. “Primary procurement unit” means: The State Treasurer; The Department of General Services; The Department of Transportation; The Maryland Port Commission; Morgan State University; St. Mary's College of Maryland; and The University System of Maryland. 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: Each participating governmental entity agrees to procure its respective requirements from the successful bidder or offeror; and A lead jurisdiction conducts the procurement on behalf of all participants and either a master contract award or awards will be made by the lead jurisdiction on behalf of all participants, or, if stated in the solicitation, each participant may elect to award its own contract or contracts pursuant to the criteria stated in the invitation for bids or request for proposals. 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: Initially sponsor or participate in an intergovernmental cooperative purchasing agreement; Renew an intergovernmental cooperative purchasing agreement; or Modify an intergovernmental cooperative purchasing agreement. A determination under §A(1) of this regulation shall be in writing and include: Sufficient evidence that the intergovernmental cooperative purchasing agreement: Will provide cost benefits to the State; or Will promote administrative efficiencies, or promote intergovernmental cooperation; and A statement how the intergovernmental cooperative purchasing agreement: Is in the best interest of the State; and Is not intended as a means to evade the purposes set forth under COMAR 21.01.01.03. A determination under §A(2) or (3) of this regulation shall be in writing and include: Sufficient evidence that the intergovernmental cooperative purchasing agreement: Will provide cost benefits to the State; and Will promote administrative efficiencies, or promote intergovernmental cooperation; and A statement how the intergovernmental cooperative purchasing agreement: Is in the best interest of the State; and Is not intended to evade the purposes set forth under COMAR 21.01.01.03. 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. Before awarding, sponsoring, or participating in an intergovernmental cooperative purchasing agreement, the procurement officer shall obtain the approval of the primary procurement unit head or designee, and any other approvals as required under this title. An intergovernmental cooperative purchasing agreement may be in the form of a “Definite Quantity Contract” or an “Indefinite Quantity Contract” (which includes requirements contracts), or any other contract type permitted under COMAR 21.06.03. When a primary procurement unit is a named participant in a solicitation for bids or proposals for an intergovernmental cooperative purchasing agreement, or the unit acts as a sponsor of an agreement, and the value of the procurement to be made by the State is expected to exceed $50,000, public notice of the solicitation shall be given pursuant to COMAR 21.05.02.04. If a primary procurement unit sponsors 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. A political subdivision of the State may participate under any intergovernmental purchasing agreement sponsored by a primary procurement unit in a manner consistent with the terms of the agreement. 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. State Finance and Procurement Article, §§12-101, 13-102, 13-110, and 14-303, Annotated Code of Maryland; Ch. 774, Acts of 2017 Effective date: October 5, 1998 (25:20 Md. R. 1533) Regulation .01B amended effective October 18, 1999 (26:21 Md. R. 1631); January 22, 2001 (28:1 Md. R. 27); March 12, 2007 (34:5 Md. R. 562); July 23, 2012 (39:14 Md. R. 839); June 29, 2020 (47:13 Md. R. 643) Regulation .03C amended effective April 11, 2005 (32:7 Md. R. 685) Regulation .04 amended effective March 11, 2019 (46:5 Md. R. 310) Regulation .05 amended effective March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369) Regulation .07 amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .08A amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .08B amended effective March 11, 2019 (46:5 Md. R. 310) In this chapter, the following terms have the meanings indicated. Terms Defined. “Construction management at risk” means a project delivery method wherein a construction manager provides a range of preconstruction services and construction management services which may include, but are not limited to, cost estimation and consultation regarding the design of the project, prequalifying and evaluating trade contractors and subcontractors, awarding the trade contracts and subcontracts, scheduling, cost control, and value engineering. “Construction manager” means the sole proprietorship, partnership, corporation, or other legal entity that provides construction management services. “Guaranteed maximum price (GMP)” means the agreed dollar amount for the construction and construction management services, including the specified scope of work, the cost of the trade work, the general conditions, contingency, and the fees charged by the construction management firm. “Preconstruction services” means services provided by the construction manager before construction which include, but are not limited to, constructability analysis, value engineering, scheduling, site assessments, and cost estimates. “Trade contract” means an agreement which sets out the terms and conditions upon which the construction manager engages trade contractors. “Trade contractor” means a subcontractor who specializes in a particular aspect of a construction project such as plumbing, electrical, or painting. 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. State Finance and Procurement Article, §§12-101 and 13-103—13-104, Annotated Code of Maryland Effective date: August 23, 2010 (37:17 Md. R. 1186) In this chapter, the following terms have the meanings indicated. Terms defined. “Design build” means a project delivery method in which a single entity is contractually responsible for both design and construction of a project. “Design professional” means an architect or professional engineer who is licensed to conduct business in the State of Maryland. Before the solicitation is issued, the procurement officer shall prepare a written determination justifying the use of the design-build method which addresses some or all of the following criteria: 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. Each design-builder shall employ or have as a partner, member, officer, joint venture partner, or subcontractor at least one design professional duly licensed and registered to do business in the State. 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: The minimum qualifications of the design-builder; Requirements for construction and design experience and experience in other design-build projects provided the requirements do not unduly restrict competition; The scope of work; and Responsibilities of the State and design-builder particularly in the areas of design defects and warranties. State Finance and Procurement Article, §§12-101 and 13-103—13-104, Annotated Code of Maryland Effective date: August 23, 2010 (37:17 Md. R. 1186) This chapter applies to procurements of human, social, cultural, and educational services. Locally Funded Contracts. This section applies to a solicitation for a contract to provide human, social, cultural, or educational services if the contract is to be funded in part by a county or by Baltimore City under a legislative mandate or prior agreement. Not later than the date the solicitation is publicly available, the procurement officer shall send a copy of it to the chief elected official, or designee, of the funding jurisdiction for review and comment. The procurement officer shall request the funding jurisdiction to provide its written comments within 30 days. The procurement officer may not award the contract without considering timely funding jurisdiction comments, if any, submitted pursuant to §A(2) of this regulation. The procurement officer shall make a determination with respect to any timely funding jurisdiction comments that are not to be implemented. 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: The procurement officer, with the approval of the agency head, determines that two or more sources for the services are available but that, because of the absence of effective competition, it is unreasonable to expect those sources to respond to an invitation for bids under COMAR 21.05.02 or request for proposals under COMAR 21.05.03. The procurement is to obtain one of the following services: An employer in a program of on the job training for employment and training purposes; Group foster care services for children or adults under a negotiated rate system adopted by regulation; or The following services for the mentally ill: Residential rehabilitation services, Community rehabilitation services (psychosocial), or Therapeutic group home services for children and adolescents. Public Notice. At least 10 days before general expressions of interest are due, the procurement agency shall give public notice of its general requirements for services and request interested service providers to respond with written general expressions of interest. Public notice of any request for expressions of interest shall: Be sent to known potential providers; and Be sent to interested advocacy organizations. If the procurement agency expects that any contract may exceed $25,000, the request for general expressions of interest shall so state and shall be published in eMaryland Marketplace. As a need for the services arises, the procurement officer may: Conduct discussions with one or more responsible service providers that previously submitted an expression of interest; and Award a contract to a provider if the procurement agency head, on the basis of discussions or past experience with the provider, determines that an award will be in the State's best interest. 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: Explicitly refer to any applicable program standards adopted by the Maryland Department of Health, the Department of Human Services, the Department of Juvenile Services, the Department of Disabilities, or the Department of Aging; Require each offering provider to indicate how it has or will meet these standards; and Indicate that the contractor shall meet these standards before it provides any services under the contract. 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. In order to assure continuity of human or social services care, a procurement agency may enter a multi-year contract for human or social services when: The conditions in COMAR 21.06.03.09 are met; or The procurement officer, with the approval of the agency head, determines that it is not reasonable to expect that a contract for a single fiscal year will be sufficient to alleviate the conditions for which a group of third-party clients will receive the services. The procurement officer shall follow the procedures required by COMAR 21.06.03.09D. A multi-year contract, including any option periods, may extend for more than 3 years only with the prior express approval of the Board of Public Works. Sole Source Contracts. In order to provide continuity of human or social services care to current third-party clients, the procurement officer shall, before the contract with the current provider expires, attempt to negotiate a sole source contract with the current provider if: A sole source contract with the current provider is authorized under COMAR 21.05.05.02A; or Based on an assessment by a licensed or certified health practitioner, the head of a funding unit determines that a change in the human or social services provider would have a detrimental impact on those clients currently being served by the provider. The licensed or certified health practitioner shall be a psychologist, social worker, physician, nurse, or qualified developmental disabilities professional (QDDP), as defined in COMAR 10.22.03.01B(25), and: May be employed by the procurement agency; but May not be employed by the provider that has the human or social services contract with the procurement agency for the third-party clients. Before issuing a solicitation for services to be provided to current third-party clients, the procurement officer shall: Decide whether a sole source contract will be negotiated for any of these current clients under §C(1) of this regulation; Exclude from the solicitation any current third-party client for whom a sole source contract has been negotiated; and Include in the solicitation a notice of any current sole source contract negotiations for current third-party clients, and a statement that these clients might not be included in any contract resulting from the solicitation. 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). State Finance and Procurement Article, §§12-101, 13-102, 13-104, 13-106, 13-108, and 13-109, Annotated Code of Maryland Effective date: January 2, 2017 (43:26 Md. R. 1449) Regulation .02B amended effective March 3, 2025 (52:4 Md. R. 221) Regulation .03C amended effective July 15, 2019 (46:14 Md. R. 623) Regulation .07B, C amended effective June 29, 2020 (47:13 Md. R. 643) In this chapter, the following words have the meaning indicated. Terms Defined. “Designated procurement unit” means: The Department of General Services; The Department of Transportation; or The Department of Information Technology, only with respect to an information technology master contract executed before July 1, 2022, until the earlier of: The expiration date of all information technology master contracts; or June 30, 2027. “Master contract” means a set of master contractor agreement awards in which only those master contractors with awards in that set may compete for secondary competition awards for a specific type of service, supply, or commodity. “Master contracting” means a streamlined procurement method that provides for the qualification of bidders and offerors for the procurement of services, supplies, or commodities, that is subject to secondary competition for the awarding of work. “Master contractor” means a person awarded a master contractor agreement and qualified to compete to provide categories of services, supplies, or commodities under secondary competition. “Master contractor agreement” means an executed standard contract for a specified period of time between the State and a person approved as a master contractor that is subject to secondary competition for the awarding of work. “Secondary competition” means a procurement process in which only approved master contractors may compete to provide the services, supplies, or commodities under the procurement. 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: The categories of services, supplies, or commodities in which an offeror may submit a proposal for qualification; Information concerning proposal submission requirements, including the date, time, and place for the receipt of proposals; A statement that discussions may be conducted with those responsible offerors that submit proposals initially judged by the procurement officer to be reasonably susceptible of being selected for award. However, if the request for proposals so notifies all offerors, discussions need not be conducted: With respect to prices that are fixed by law or regulation, except that consideration shall be given to competitive terms and conditions; If time of delivery or performance does not permit discussions; or If it can be demonstrated clearly from the existence of adequate competition or accurate prior cost experience with the particular item, that acceptance of an initial offer without negotiation would result in a fair and reasonable price; The mandatory solicitation requirements set forth in COMAR 21.05.08; All required contract terms and conditions; and 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. Public Notice. Distribution. Solicitations or notices of the availability of solicitations shall be mailed or otherwise furnished to a sufficient number of vendors for the purpose of securing competition. Notices of availability shall indicate where, when, and for how long solicitations may be obtained, generally describe the service, supply, or commodity desired, and may contain other appropriate information. Publication. Notice of solicitations for which the proposal is reasonably expected to exceed $50,000 shall be published in eMaryland Marketplace unless the resulting master contractor agreement is reasonably expected to be performed entirely outside this State or the District of Columbia. Publication shall be at least 20 days before the proposal submission date. Publication of notice less than 20 days before proposal submission is defective unless notice of the project is not required by State law. 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. Pre-proposal conferences may be conducted by the procurement officer or designee to explain the procurement requirements. If a pre-proposal conference is held, it shall be announced to all prospective offerors who were sent a solicitation or who are known by the procurement officer to have obtained the solicitation documents. Any pre-proposal conference should be held long enough after the solicitation has been issued to allow prospective offerors to become familiar with it, but sufficiently before proposal opening to allow consideration of the pre-proposal conference results in the preparation of proposals. Attendance at a pre-proposal conference may be encouraged, but may not be made mandatory except to the extent required under COMAR 21.11.03.09C(2)(e). Nothing stated at the pre-proposal conference may change the solicitation unless a change is made by the procurement officer by written amendment. Pre-Proposal Conference Records. When a pre-proposal conference is held in connection with a procurement that is expected to exceed $100,000, the procurement officer shall ensure that a written record of the conference is prepared as soon as practicable and that the record is sent to all prospective offerors who were sent a solicitation or who are known by the procurement officer to have obtained the solicitation. When a pre-proposal conference is held and a conference summary is made, the procurement officer shall ensure that the summary is sent to all prospective offerors who were sent a solicitation or who are known by the procurement officer to have obtained the solicitation. The record or summary of a pre-proposal conference is a public record that is open to public inspection during ordinary business hours. Electronic records and transmissions of a pre-bid conference satisfy the requirements of this regulation. Electronic Pre-Proposal Conferences. Electronic pre-proposal conferences may be conducted if specifically permitted or required in the solicitation. An electronic pre-proposal conference shall permit interactive communication between all prospective offerors and the procurement officer. If pre-proposal conferences are conducted by electronic means, prospective offerors shall be notified of the: Date and time set for the electronic pre-proposal conference; and Manner and duration of the interactive session. Amendments to Solicitations. Form. Each amendment to a solicitation shall be identified as such and shall require that the offeror acknowledge its receipt. The amendment shall reference the portion of the solicitation it amends. The procurement officer shall authorize the issuance of an amendment. Distribution. Amendments shall be sent to all prospective offerors who were sent a solicitation or who are known to the procurement officer to have obtained the solicitation documents. Timeliness. Amendments shall be distributed within a reasonable time to allow prospective offerors to consider them in preparing their proposals. If the time and date for receipt of proposals does not permit preparation, the time shall be increased to the extent possible in the amendment or, if necessary, by electronic communication or telephone and confirmed in the amendment. Late Proposals, Withdrawals, and Modifications. Policy. Any proposal received at the place designated in the solicitation after the time and date set for receipt of proposal is late. Any request for withdrawal or request for modification received at the place designated in the solicitation after the time and date set for receipt of proposals is late. Treatment. A late proposal, late request for modification, or late request for withdrawal may not be considered. Upon the written approval of the Office of the Attorney General, exceptions may be made when a late proposal, withdrawal, or modification is received before master contractor agreement award, and the proposal, modification, or withdrawal would have been timely but for the action or inaction of State personnel directing the procurement activity or their employees. A late modification of a successful proposal that makes its terms more favorable to the State shall be considered at any time it is received and may be accepted upon the written approval of the Office of the Attorney General. Records. A record shall be made of each request for late proposal acceptance, modification, or withdrawal which shall be retained in the appropriate procurement file. Receipt of Proposals. Proposals and modifications shall be held in a secure place until the established due date. Proposals may not be opened publicly but shall be opened in the presence of at least two State employees. After the established due date, a register of proposals shall be prepared that identifies each offeror. The identity of an offeror and the register of proposals may not be disclosed before the procurement officer makes a determination recommending the award of the master contractor agreement pursuant to Regulation .04B of this chapter. After master contractor agreement award, proposals shall be open to public inspection subject to the provisions of the Public Information Act, General Provisions Article, Title 4, Annotated Code of Maryland. 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. When a master contractor agreement is to be awarded on some basis other than price alone, unsuccessful offerors may submit a written request for a debriefing to the procurement officer within a reasonable time. Debriefing shall be provided at the earliest feasible time after the procurement officer receives a request for a debriefing and before the master contractor agreement award is presented to the agency head or designee or the Board for approval. The debriefing shall be conducted by a procurement official familiar with the rationale for the selection decision and master contractor agreement award. Debriefing shall: Be limited to discussion of the unsuccessful offeror’s proposal and may not include specific discussion of a competing offeror’s proposal; Be factual and consistent with the evaluation of the unsuccessful offeror’s proposal; and Provide information on areas in which the unsuccessful offeror’s technical proposal was deemed weak or deficient. Debriefing may not include discussion or dissemination of the thoughts, notes, or rankings of individual members of an evaluation committee, but may include a summary of the procurement officer’s rationale for the selection decision and recommended master contractor agreement award. A summary of the debriefing shall be made a part of the master contractor agreement file. 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: If the unit of the Executive Branch expects the total cost of the services, supplies, or commodities in the secondary competition to exceed $100,000, the unit shall issue the secondary competition solicitation to all master contractors in the appropriate category in the master contract established by the designated procurement unit; or If the unit of the Executive Branch expects the total cost of the services, supplies, or commodities in the secondary competition to be $100,000 or less, the unit shall issue the secondary competition solicitation to a minimum of six master contractors or all master contractors, whichever is less, in the appropriate category in the master contract established by the designated procurement unit. If the total number of master contractors available to be solicited exceeds six, the procurement officer shall make a written determination including the reasons why the particular master contractors were selected to be solicited. The master contract shall specify the type of secondary competition solicitation to be used from the following: Task Order Request for Proposals (TORFP): To be used when a scope of work for services, supplies, or commodities requires master contractors to submit proposals which are then evaluated to determine the most advantageous award for the State. A TORFP shall follow the provisions for Competitive Sealed Proposals and requests for proposals as set forth in COMAR 21.05.03, except for task order evaluation and award, which shall follow Regulation .06 of this chapter. The minimum proposal preparation time requirement in COMAR 21.05.02.02 and the minimum public notice time requirement in COMAR 21.05.02.04B are both shortened to at least 10 days from solicitation publication to proposal submission for a TORFP. Purchase Order Request for Proposals (PORFP): To be used when specific services, supplies, or commodities are available at a fixed price, typically as defined in a catalog or price sheet of the master contract. A PORFP shall follow the provisions for Competitive Sealed Bidding and invitations for bids as set forth in COMAR 21.05.02, except for purchase order evaluation and award, which shall follow Regulation .06 of this chapter. The minimum bidding time requirement in COMAR 21.05.02.02 and the minimum public notice time requirement in COMAR 21.05.02.04B are both shortened to at least 10 days from solicitation publication to bid submission for a PORFP. Request for Resumes (RFR): To be used when temporary personnel are required. An RFR requests master contractors to submit resumes for qualified candidates in response to a specific scope of work, with resumes evaluated, candidates interviewed, and selection made in accordance with Regulation .06 of this chapter. 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. The requirements in Regulations .05A(1) and (2) and C and .06A of this chapter do not apply to a master contract for construction that is procured and awarded under this chapter and states how task orders will be awarded and the maximum number of qualified contractors that will be awarded a master contractor agreement for construction. State Finance and Procurement Article, §§12-101, 13-101, 13-102, 13-113, 13-114 and 14-303, Annotated Code of Maryland Effective date: March 11, 2019 (46:5 Md. R. 310) Regulation .05B amended effective May 2, 2022 (49:9 Md. R. 531) Regulation .05D adopted effective September 18, 2023 (50:18 Md. R. 800) Regulation .06H repealed effective May 2, 2022 (49:9 Md. R. 531) 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: The specifications of the procurement contract; Whether the procurement contract will be awarded based on the lowest bid price or the lowest evaluated bid price; If the procurement contract will be based on evaluated bid price, the objective measurable criteria by which the lowest evaluated bid price will be determined; The small business preference, if designated under COMAR 21.11.01.05; The date and time when bidding will commence and the date and time when bidding will end or the event upon which bidding will end; The mandatory solicitation requirements set forth in COMAR 21.05.08; and 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. In the discretion of the procurement officer, the invitation for auction bids may: Include a request for unpriced technical offers or samples; Direct bidders to submit price bids after the unit evaluates the technical offers or samples and finds they are acceptable under the criteria set forth in the invitation for auction bids; and Inform all bidders who submitted technical offers or samples of the identity of each bidder who submitted an acceptable technical offer or sample. 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: Receive bids in public at the time and place designated in the invitation for auction bids; and Record the amount of each bid at the time it is received. 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: Allowed under regulations applicable to an invitation for bids under COMAR 21.05.02; and Approved in writing by the Office of the Attorney General. 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: Is the lowest bid price; or If the invitation for auction bids so provides, is the lowest evaluated bid price. 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: All bids are rejected under COMAR 21.06.02; All bid prices exceed the funds available for the procurement; or With the approval of the head of a primary procurement unit or a designee, the procurement officer determines that all bids are unreasonable as to at least one requirement and the delay that would result from issuing a new invitation for auction bids with revised specifications or quantities would be fiscally disadvantageous or otherwise not in the best interests of the State. If one of the conditions set forth under Regulation .04C of this chapter exists, as promptly as possible, the procurement officer shall: Issue an invitation for revised auction bids, which shall state whether the award will be made without competitive negotiations; and Require a prompt response to that invitation. 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: Is the lowest bid price; or If the invitation for revised bids so provides, is the lowest evaluated bid price. Not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish notice of the award in eMaryland Marketplace. State Finance and Procurement Article, §§13-102, 13-111, and 14-303, Annotated Code of Maryland Effective date: September 18, 2023 (50:18 Md. R. 800) In this chapter, the following words have the meaning indicated. Terms Defined. “Aggregator” means a person that: Provides or contracts for environmental outcomes; or Provides or raises capital to finance delivery of environmental outcomes. “Environmental outcome” means a commodity that is modeled or directly measured as a single, quantifiable, and certified unit of improvement to the environment, including a nutrient or carbon benefit. “Environmental outcomes project” means a project designed to secure environmental outcomes. “Evaluator” means a person other than an aggregator that determines whether environmental outcomes have been achieved based on defined performance measures. “Outcome payment” means the money paid when a pay-for-success contract performance measure is met. “Pay-for-success contracting” means a performance-based procurement method through which a unit contracts with an organization to deliver services or commodities in exchange for payment based on the achievement of outcomes. “Quantification plan” means a plan in which an aggregator describes: The method that will be used to measure or model environmental outcomes and co-benefits under a pay-for-success contract; The compliance monitoring that will occur to ensure that the actions proposed in the pay-for-success contract are taken and maintained over the life of the project; Verification steps that will be carried out by the State to confirm model results or accurate measurement of environmental outcomes; and The timeline for proposed payments under the pay-for-success contract. The General Assembly has found and declared that: 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: The contract will produce estimated financial savings or other quantifiable public benefits for the State; and A substantial portion of the outcome payment due under the contract will be paid only after specific outcomes have been documented. This chapter applies only to procurements by: The Department of Agriculture; The Department of the Environment; The Department of Natural Resources; The Department of Transportation; The Maryland Environmental Service; and The Department of General Services. 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: Delivery of an environmental outcomes project; or Already certified environmental outcomes. 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 quantification plan approved by the unit; A statement of the environmental outcomes to be procured under the contract and a description of how defined performance measures will demonstrate progress in achieving these outcomes; Requirements regarding the content and frequency of progress reports regarding the achievement of environmental outcomes; A methodology for calculating the amount and timing of outcome payments to an aggregator when the evaluator determines that the aggregator has achieved a defined performance measure; A statement that the basis of payment is the determination of achievement of environmental outcomes by the evaluator and that payments for those outcomes do not require itemized billing or cost documentation by the aggregator; and Terms addressing: Compliance with State law; Nondiscrimination in employment; Contractor indemnification; Termination for default; and The unit’s right to inspect the environmental outcomes project. A pay-for-success contract executed under this regulation may include provisions regarding: Long-term maintenance and monitoring of environmental services, including the establishment of a stewardship fund; A requirement that the unit hold contract funds in a reserve account for outcome payments; For agriculture services, payment for achievement of baseline water quality requirements for nitrogen, phosphorus, or sediment; or Terminations prior to the first payment under the contract for the purpose of selling environmental outcomes without penalty to another entity or for any other reason. 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: The cost of each project performed under a contract; The length of time taken to complete the project, from the date of notice to proceed until completion; The average cost and project duration for each project type; and Whether each project met the terms of its contract. 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: Each unit for which the Service reviewed and evaluated a contract; and In accordance with State Government Article, §2-1257, Annotated Code of Maryland, the Senate Education, Health, and Environmental Affairs Committee, the Senate Budget and Taxation Committee, the House Environment and Transportation Committee, and the House Appropriations Committee. State Finance and Procurement Article, §§13-101, 13-102, and 13-112.1, Annotated Code of Maryland Effective date: September 18, 2023 (50:18 Md. R. 800) “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: Testing software–as–a–service or off–the–shelf software; Testing new, innovative products or services; or Testing a product or service conceptualized or conceived of by a unit of State government, in accordance State Finance and Procurement Article, §13-116(B)(1), Annotated Code of Maryland. 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: Has sufficient internal resources to manage the proof of concept, including human capital, subject matter expertise, and technological infrastructure, or has the means to obtain these resources; and Enters into a memorandum of understanding with the Department of Information Technology that requires regular status updates, vendor capacity, and any other information necessary for the Department of Information Technology to evaluate whether the proof of concept can be successfully deployed and is beneficial to the State. A competitive proof of concept procurement: May be conducted through the issuance of a solicitation by any method of procurement authorized under COMAR 21.05.01.01; and Shall include a statement of the following: The scope of work or project description, including The intended use; Quantity; Estimated time frame for the proof of concept; and Anticipated number of proof of concept awards that will be made; The factors, including price, that will be used in evaluating proposals and the relative importance of each. 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: Conduct discussions with an offeror to ensure full understanding of The requirements of the unit, as set forth in the request for proposals; and The proposal submitted by the offeror; and Request product samples for testing by the unit or a demonstration of a product or service and use these samples or demonstrations in its evaluation process. 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. A unit may award one or more of the proposals a contract for the proof of concept. State Finance and Procurement Article, §§12-101, 13-102, 13-116, and 14-303, Annotated Code of Maryland Effective date: March 3, 2025 (52:4 Md. R. 221)