# COMAR Title 21 — State Procurement Regulations

## Subtitle 05 — Procurement Methods and Project Delivery Methods

### Chapter 06 — Emergency and Expedited Procurements

**Authority:** Public Safety Article, §14-117; State Finance and Procurement Article, §§12-101 and 13-108; Annotated Code of Maryland

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

**Administrative History:** Chapter revised effective May 6, 1985 (12:9 Md. R. 815)

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

**Administrative History:** Chapter revised effective April 24, 1995 (22:8 Md. R. 598)

**Administrative History:** 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)

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

**Administrative History:** Regulation .02 amended effective September 5, 2022 (49:18 Md. R. 819)

**Administrative History:** Regulation .02A, D amended effective April 7, 2008 (35:7 Md. R. 751); May 2, 2022 (49:9 Md. R. 531)

**Administrative History:** Regulation .02D amended effective November 7, 2005 (32:22 Md. R. 1759)

**Administrative History:** Regulation .03 amended effective September 5, 2022 (49:18 Md. R. 819)

**Administrative History:** Regulation .03A amended effective December 25, 2000 (27:25 Md. R. 2284)

**Administrative History:** Regulation .03E amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751)

#### Regulation .01 Application.

*COMAR 21.05.06.01*

A. 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.

B. 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.

#### Regulation .02 Emergency Procurements.

*COMAR 21.05.06.02*

A. 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.

B. Authority.

  (1) 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.

  (2) The procurement officer may award an emergency contract or make an emergency contract modification only with the approval of the agency head or designee.

  (3) 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.

C. Source Selection and Contract Award.

  (1) 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.

  (2) 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:

    (a) The length of time the contractor has been in business;

    (b) 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

    (c) The contractor’s history of successful procurement contracts with the State and other jurisdictions.

  (3) 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.

D. Record and Review of Emergency Procurement.

  (1) 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.

  (2) A record of each emergency procurement shall be made within 7 days of award and shall set forth:

    (a) The basis and justification for the emergency procurement including the date the emergency first became known;

    (b) A listing of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services procured;

    (c) The names of all persons solicited and a justification if the solicitation was limited to one person;

    (d) The prices and times of performance proposed by the persons responding to the solicitation;

    (e) The name of and basis for the selection of a particular contractor;

    (f) The amount and type of the contract or contract modification;

    (g) 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;

    (h) The identification number, if any, of the contract file;

    (i) The documented approval of the agency head or designee, as required by §B(2) of this regulation; and

    (j) The documented approval of the Chief Procurement Officer or designee when applicable, as required by §B(3) of this regulation.

  (3) 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).

  (4) At the Board's request, the appropriate control agency shall review emergency procurement action agenda items and provide recommendations to the Board.

  (5) The Board may direct the procurement agency or the appropriate control agency to take any action the Board deems appropriate concerning an emergency procurement.

  (6) 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:

    (a) 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

    (b) 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.

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

  (1) 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.

  (2) 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.

  (3) 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).

  (4) 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.

F. State of Emergency.

  (1) 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.

  (2) The notice required by §F(1) of this regulation shall include:

    (a) The name, business address, and, if applicable, website address of the awarded vendor;

    (b) The dollar value of the contract;

    (c) A description of how the funds are to be used; and

    (d) An explanation of the reasons the procurement is necessary to prepare for or address the emergency.

  (3) After an emergency procurement contract is executed in order to prepare for or address the state of emergency:

    (a) 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

    (b) The Legislative Policy Committee may request that the Office of Legislative Audits conduct an audit of the emergency procurement.

#### Regulation .03 Expedited Procurements.

*COMAR 21.05.06.03*

A. Authority.

  (1) A procurement officer may make an expedited procurement when the following conditions have been met:

    (a) 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

    (b) The Board has approved the use of the expedited procurement method.

  (2) 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.

B. Source Selection.

  (1) Competitive solicitation of bids or offers shall be the preferred method of making an expedited procurement and may include:

    (a) 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;

    (b) Notice by posting on the procurement agency's bid board, if any; and

    (c) Direct solicitation by mail from persons who are believed to be qualified to perform the contract.

  (2) 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.

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

  (1) 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

  (2) Justifies any noncompetitive selection.

D. Approval Procedure.

  (1) The procurement agency shall obtain the Board's approval before using the expedited procurement method.

  (2) 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:

    (a) 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.

    (b) 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.

E. Record of Expedited Procurements.

  (1) 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.

  (2) A record of each expedited procurement contract shall be made as soon as practicable and shall set forth:

    (a) The date the Board approved the use of the expedited procurement method;

    (b) The date of award;

    (c) The selected contractor's name;

    (d) The amount and type of the contract;

    (e) The names of persons solicited and their responses;

    (f) A listing of supplies, services, maintenance, commodities, construction, or construction-related services procured under the contract;

    (g) The basis for the selection of a particular contractor; and

    (h) The identification number, if any, of the contract file.

  (3) 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.