# COMAR Title 21 — State Procurement Regulations

## Subtitle 05 — Procurement Methods and Project Delivery Methods

### Chapter 09 — Intergovernmental Cooperative Purchasing

**Authority:** State Finance and Procurement Article, §§12-101, 13-102, 13-110, and 14-303, Annotated Code of Maryland; Ch. 774, Acts of 2017

**Administrative History:** Effective date: October 5, 1998 (25:20 Md. R. 1533)

**Administrative History:** 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)

**Administrative History:** Regulation .03C amended effective April 11, 2005 (32:7 Md. R. 685)

**Administrative History:** Regulation .04 amended effective March 11, 2019 (46:5 Md. R. 310)

**Administrative History:** Regulation .05 amended effective March 11, 2019 (46:5 Md. R. 310); April 29, 2024 (51:8 Md. R. 369)

**Administrative History:** Regulation .07 amended effective June 29, 2020 (47:13 Md. R. 643)

**Administrative History:** Regulation .08A amended effective September 18, 2023 (50:18 Md. R. 800)

**Administrative History:** Regulation .08B amended effective March 11, 2019 (46:5 Md. R. 310)

#### Regulation .01 Definitions.

*COMAR 21.05.09.01*

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

B. Terms Defined.

  (1) “Governmental entity” means:

    (a) The federal government or an agency or other instrumentality of the federal government;

    (b) Another state or an agency or other instrumentality of another state;

    (c) A bistate or multistate agency;

    (d) 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;

    (e) A bicounty or multicounty agency;

    (f) A primary procurement unit or the University System of Maryland; or

    (g) An affiliation, alliance, consortium, or group composed solely of governmental entities that is established for purposes of promoting intergovernmental cooperative purchasing.

  (2) “Intergovernmental cooperative purchasing agreement” means a contract:

    (a) That is:

      (i) 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;

      (ii) 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

      (iii) Intended to promote efficiency and savings that can result from intergovernmental cooperative purchasing; or

    (b) 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.

  (3) “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.

  (4) “Primary procurement unit” means:

    (a) The State Treasurer;

    (b) The Department of General Services;

    (c) The Department of Transportation;

    (d) The Maryland Port Commission;

    (e) Morgan State University;

    (f) St. Mary's College of Maryland; and

    (g) The University System of Maryland.

#### Regulation .02 Cooperative Purchasing Authorized.

*COMAR 21.05.09.02*

A. 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.

B. 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.

#### Regulation .03 Forms of Intergovernmental Cooperative Purchasing.

*COMAR 21.05.09.03*

A. 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:

  (1) Each participating governmental entity agrees to procure its respective requirements from the successful bidder or offeror; and

  (2) 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.

B. 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.

C. 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.

#### Regulation .04 Determinations Required.

*COMAR 21.05.09.04*

A. 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:

  (1) Initially sponsor or participate in an intergovernmental cooperative purchasing agreement;

  (2) Renew an intergovernmental cooperative purchasing agreement; or

  (3) Modify an intergovernmental cooperative purchasing agreement.

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

  (1) Sufficient evidence that the intergovernmental cooperative purchasing agreement:

    (a) Will provide cost benefits to the State; or

    (b) Will promote administrative efficiencies, or promote intergovernmental cooperation; and

  (2) A statement how the intergovernmental cooperative purchasing agreement:

    (a) Is in the best interest of the State; and

    (b) Is not intended as a means to evade the purposes set forth under COMAR 21.01.01.03.

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

  (1) Sufficient evidence that the intergovernmental cooperative purchasing agreement:

    (a) Will provide cost benefits to the State; and

    (b) Will promote administrative efficiencies, or promote intergovernmental cooperation; and

  (2) A statement how the intergovernmental cooperative purchasing agreement:

    (a) Is in the best interest of the State; and

    (b) Is not intended to evade the purposes set forth under COMAR 21.01.01.03.

D. 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.

#### Regulation .05 Approvals Required.

*COMAR 21.05.09.05*

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.

#### Regulation .06 Contract Types.

*COMAR 21.05.09.06*

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.

#### Regulation .07 Public Notice.

*COMAR 21.05.09.07*

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.

#### Regulation .08 State Sponsored Agreements.

*COMAR 21.05.09.08*

If a primary procurement unit sponsors an intergovernmental cooperative purchasing agreement:

A. 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;

B. 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

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

#### Regulation .09 Protests and Disputes.

*COMAR 21.05.09.09*

A. 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.

B. 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.

#### Regulation .10 Participation by Political Subdivisions in State Contracts.

*COMAR 21.05.09.10*

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.

#### Regulation .11 Use of State-Sponsored Contracts.

*COMAR 21.05.09.11*

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

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

C. 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.

D. 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.