# COMAR Title 21 — State Procurement Regulations

## Subtitle 05 — Procurement Methods and Project Delivery Methods

### Chapter 02 — Procurement by Competitive Sealed Bidding

**Authority:** : State Finance and Procurement Article, §§12-101, 13-103, 13-210, and 14-301—14-308, Annotated Code of Maryland; Chs. 586 and 587, Acts of 2017

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

**Administrative History:** Regulations .02 and .04B amended as an emergency provision effective November 6, 1987 (14:24 Md. R. 2553); emergency status extended at 15:5 Md. R. 615, 15:11 Md. R. 1328, 15:18 Md. R. 2144, and 15:24 Md. R. 2766 (Emergency provisions are temporary and not printed in COMAR)

**Administrative History:** Annotation: COMAR 21.05.02.12D cited in Maryland Port Administration v. John W. Brawner Contracting Co., 303 Md. 44 (1985)

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

**Administrative History:** Regulation .01B amended effective September 18, 2023 (50:18 Md. R. 800)

**Administrative History:** Regulation .02 amended effective February 24, 1997 (24:4 Md. R. 294)

**Administrative History:** Regulation .03 amended effective October 27, 2003 (30:21 Md. R. 1530)

**Administrative History:** Regulation .04 amended effective February 24, 1997 (24:4 Md. R. 294)

**Administrative History:** Regulation .04B amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); March 11, 2019 (46:5 Md. R. 310)

**Administrative History:** Regulation .05 repealed effective March 11, 2019 (46:5 Md. R. 310)

**Administrative History:** Regulation .06 amended effective June 29, 2020 (47:13 Md. R. 643)

**Administrative History:** Regulation .07 amended effective April 7, 1997 (24:7 Md. R. 554)

**Administrative History:** Regulation .07E amended and F adopted effective October 27, 2003 (30:21 Md. R. 1530)

**Administrative History:** Regulation .08C amended effective July 15, 2019 (46:14 Md. R. 623)

**Administrative History:** Regulation .09A amended effective October 27, 2003 (30:21 Md. R. 1530)

**Administrative History:** Regulation .11 amended effective June 29, 2020 (47:13 Md. R. 643)

**Administrative History:** Regulation .14B amended effective December 25, 2023 (50:25 Md. R. 1090)

**Administrative History:** Regulation .16 amended effective November 7, 2005 (32:22 Md. R. 1759)

**Administrative History:** Regulation .16 amended effective April 7, 2008 (35:7 Md. R. 751)

**Administrative History:** Regulation .17A, C amended effective April 7, 2008 (35:7 Md. R. 751)

**Administrative History:** Regulation .17B amended effective June 29, 2020 (47:13 Md. R. 643)

**Administrative History:** Regulation .23 amended effective February 23, 2009 (36:4 Md. R. 355)

**Administrative History:** Regulation .23 repealed effective March 16, 2015 (42:5 Md. R. 488)

**Administrative History:** Regulation .23E adopted effective November 7, 2005 (32:22 Md. R. 1759)

**Administrative History:** Regulation .23E amended effective April 7, 2008 (35:7 Md. R. 751)

#### Regulation .01 Invitation for Bids.

*COMAR 21.05.02.01*

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

B. Content. The invitation for bids shall include the following:

  (1) 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;

  (2) The purchase description, delivery or performance schedule, and any special instructions necessary; and

  (3) 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;

  (4) The mandatory solicitation requirements set forth in COMAR 21.05.08; and

  (5) 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.

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

#### Regulation .02 Bidding Time.

*COMAR 21.05.02.02*

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.

#### Regulation .03 Bidder Submissions.

*COMAR 21.05.02.03*

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

B. Bid Content.

  (1) Bids shall be based upon the specifications contained in the invitation for bids.

  (2) Bids shall be typewritten or written legibly in ink.

  (3) All erasures or alterations shall be initialed by the signer in ink.

  (4) All bids shall be signed in ink.

  (5) The bid shall be submitted in an envelope which clearly indicates that it contains a bid.

  (6) 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.

C. 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.

D. 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:

  (1) Types of electronic transmission permitted;

  (2) Formats required;

  (3) Information processing systems to be used and how to access the systems; and

  (4) Time, place, and manner of receipt of electronic bids.

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

#### Regulation .04 Public Notice.

*COMAR 21.05.02.04*

A. 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.

B. 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.

#### Regulation .05 Prequalification of Bidders — Repealed.

*COMAR 21.05.02.05*

#### Regulation .06 Vendor Lists.

*COMAR 21.05.02.06*

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.

#### Regulation .07 Pre-Bid Conferences.

*COMAR 21.05.02.07*

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

B. 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.

C. 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.

D. 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.

E. Pre-Bid Conference Records.

  (1) 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.

  (2) 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.

  (3) The record or summary of a pre-bid conference is a public record that is open to public inspection during ordinary business hours.

  (4) Electronic records and transmissions of a pre-bid conference satisfy the requirements of this regulation.

F. Electronic Pre-Bid Conferences.

  (1) Electronic pre-bid conferences may be conducted if specifically permitted or required in the solicitation.

  (2) An electronic pre-bid conference shall permit interactive communication between all prospective bidders or offerors and the procurement officer.

  (3) If pre-bid conferences are conducted by electronic means, prospective bidders or offerors shall be notified of the:

    (a) Date and time set for the electronic pre-bid conference; and

    (b) Manner and duration of the interactive session.

#### Regulation .08 Amendments to Invitations for Bids.

*COMAR 21.05.02.08*

A. 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.

B. 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.

C. 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.

#### Regulation .09 Pre-Opening Modification or Withdrawal of Bids.

*COMAR 21.05.02.09*

A. 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.

B. 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.

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

#### Regulation .10 Late Bids, Late Withdrawals, and Late Modifications.

*COMAR 21.05.02.10*

A. 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.

B. 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.

C. 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.

#### Regulation .11 Receipt, Opening, and Posting of Bids.

*COMAR 21.05.02.11*

A. 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.

B. 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.

C. 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.

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

#### Regulation .12 Mistakes in Bids.

*COMAR 21.05.02.12*

A. 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.

B. 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.

C. 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:

  (1) 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.

  (2) A bidder may be permitted to withdraw a low bid if:

    (a) A mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

    (b) The bidder submits proof of evidential value which clearly and convincingly demonstrates that a mistake was made.

D. 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.

E. 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.

#### Regulation .13 Bid Evaluation and Award.

*COMAR 21.05.02.13*

A. 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.

B. 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.

C. 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.

D. 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.

#### Regulation .14 Tie Bids.

*COMAR 21.05.02.14*

A. 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.

B. 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):

  (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.

  (2) 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.

  (3) 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.

  (4) 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.

C. 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.

#### Regulation .15 Documentation of Award.

*COMAR 21.05.02.15*

Following an award, a record showing the basis for determining the successful bidder shall be made a part of the procurement file.

#### Regulation .16 Publicizing Awards.

*COMAR 21.05.02.16*

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.

#### Regulation .17 Multi-Step Sealed Bidding.

*COMAR 21.05.02.17*

A. 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.

B. 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.

C. Evaluation.

  (1) 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.

  (2) 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.

  (3) 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.

#### Regulation .18 Disposition of Bids.

*COMAR 21.05.02.18*

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.

#### Regulation .19 Time for Bid Acceptance.

*COMAR 21.05.02.19*

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

B. 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.

#### Regulation .20 Only One Bid.

*COMAR 21.05.02.20*

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.

#### Regulation .21 Multiple or Alternate Bids.

*COMAR 21.05.02.21*

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.

#### Regulation .22 Conditioning Bids Upon Other Awards Not Acceptable.

*COMAR 21.05.02.22*

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.

#### Regulation .23 Unsolicited Proposals — Repealed

*COMAR 21.05.02.23*

#### Regulation .24 Novation or Change of Name.

*COMAR 21.05.02.24*

A. 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.

B. 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:

  (1) The transferee assumes all of the transferor's obligations;

  (2) The transferor waives all rights under the contract as against the State; and

  (3) Unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.

C. 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.