In this chapter, the following words have the meanings indicated. Terms Defined. “Certified small business” (“CSB”) means a business, other than a nonprofit business, that: Is certified by the Governor's Office of Small, Minority, and Women Business Affairs pursuant to regulations adopted by that Department; and Meets the criteria for a small business as defined under COMAR 21.01.02.01B. “Disabled veteran” means a veteran who has been certified by the U.S. Department of Veterans Affairs as having a service-connected disability, regardless of the disability rating. “Disabled-veteran-owned small business” means a small business as defined under COMAR 21.01.02.01B that is at least 51 percent owned and controlled by one or more individuals who are disabled veterans. “Economically disadvantaged individual” means an individual as defined in COMAR 21.11.03.03.B. “Veteran” means a veteran as defined in 38 U.S.C. §101(2) who is domiciled in Maryland. “Veteran-owned small business” means a small business as defined under COMAR 21.01.02.01B that is at least 51 percent owned and controlled by one or more individuals who are veterans. “Small business reserve” means those procurements that are limited to responses from small businesses as provided under State Finance and Procurement Article, §14–502(c), Annotated Code of Maryland. Two distinct procurement programs, the small business preference program and the small business reserve program, are structured to assist small businesses in obtaining State contracts. The small business preference program specifically authorizes a procuring unit to apply certain percentage price preferences in favor of certified small businesses when evaluating and awarding bids on those procurements designated for a small business preference. Except as provided in Regulation .06A(3) of this chapter, the small business reserve program applies to all procurements by a procurement unit and restricts award of a contract to certified small businesses only. A procurement under this chapter is subject to all requirements and procedures otherwise applicable to the procurement. Except as otherwise provided by law, the provisions of this chapter supplement, but do not replace, other provisions of this title. Small Business Assistance. The head of each participating procurement agency or a designee shall: Assist small businesses in complying with the procedures for submitting bids and proposals on State contracts; and Consistent with the provisions of this title, attempt to simplify procedures, when practicable, to increase the opportunities for small businesses to participate in preference and reserve procurements. Rejection of Bids or Proposals. The procurement officer shall notify a small business of the reason for rejection of its bid or proposal under a small business preference or a small business reserve procurement. To be eligible to receive a small business price preference under the small business preference program, or to be eligible for award of a procurement under the small business reserve program, a business must be certified by the Governor’s Office of Small, Minority, and Women Business Affairs as a small business in accordance with regulations adopted by the Governor’s Office of Small, Minority, and Women Business Affairs. A business so certified shall be added to the certified small business list maintained by the Governor’s Office of Small, Minority, and Women Business Affairs. To maintain its certification as a small business, a business shall reapply for certification every year, not later than on the anniversary date of the initial certification. The Governor’s Office of Small, Minority, and Women Business Affairs shall certify a business as a small business for the exclusive purpose of pursuing out-of-State contracts if the business has: 250 or fewer employees; or Average annual gross receipts of $10,000,000 or less averaged over its most recently completed 3 fiscal years. Affidavit. Upon request of the Governor’s Office of Small, Minority, and Women Business Affairs, a business seeking certification or recertification as a small business shall execute and submit a Small Business Affidavit in the form prescribed under §E of this regulation. Other Information. The Governor’s Office of Small, Minority, and Women Business Affairs may, in its sole discretion, request any other information in support of the certification request. Affidavit Form. The Small Business Affidavit shall be in the following form: I am the _____________________________(type or print legibly your title, office, or capacity) of ________________(type or print legibly the correct and complete company name) hereinafter referred to as the “Business.” The Business is: a for-profit enterprise; not a broker, as defined in COMAR 21.01.02.01B(13-1); independently owned and operated; not a subsidiary of another business; not dominant in its field of operation; With respect to employees, either: The wholesale operations of the Business did not employ more than 50 persons in its most recently completed 3 fiscal years; The retail operations of the Business did not employ more than 25 persons in its most recently completed 3 fiscal years; The manufacturing operations of the Business did not employ more than 100 persons in its most recently completed 3 fiscal years; The service operations of the Business did not employ more than 100 persons in its most recently completed 3 fiscal years; The construction operations of the Business did not employ more than 50 persons in its most recently completed 3 fiscal years; or The architect and engineering services of the Business did not employ more than 100 persons in its most recently completed 3 fiscal years; and With respect to gross sales: The gross sales of its wholesale operations did not exceed an average of $4,000,000 in its most recently completed 3 fiscal years; The gross sales of its retail operations did not exceed an average of $3,000,000 in its most recently completed 3 fiscal years; The gross sales of its manufacturing operations did not exceed an average of $2,000,000 in its most recently completed 3 fiscal years; The gross sales of its service operations did not exceed an average of $10,000,000 in its most recently completed 3 fiscal years; The gross sales of its construction operations did not exceed an average of $7,000,000 in its most recently completed 3 fiscal years; and The gross sales of its architectural and engineering operations did not exceed an average of $4,500,000 in its most recently completed 3 fiscal years. Note: If a business has not existed for 3 years, the employment and gross sales shall be the average(s) for each year or part of year during which the business has been in existence. For the exclusive purpose of pursuing out-of-State contracts, the business has: 250 or fewer employees; or Average annual gross receipts of $10,000,000 or less averaged over its most recently completed three fiscal years. For small businesses claiming an additional percentage preference for being veteran-owned (2%) or disabled-veteran-owned (3%), initial next to the applicable statement: I am fully authorized by the Business to provide this Affidavit. Upon request of the State of Maryland, the Business promises to provide the State promptly with copies of the complete federal and state (all states in which the Business filed returns) income tax returns for the most recently completed 3 fiscal years of the Business. I understand that the State of Maryland may rely upon this affidavit and that if the information provided by me in this certification is false I may be subject to criminal prosecution for perjury, procurement fraud, and other crimes and any contract awarded to the Business in reliance upon this Affidavit may be void or subject to termination for default. UNDER PENALTIES OF PERJURY, I hereby swear that the matters stated in this Affidavit are true. Penalties for Submitting False Information. If information provided by the business in the affidavit or by other means is materially false, the bidder or offeror and the individual providing the false information may be subject to criminal prosecution for perjury, procurement fraud, and other crimes and may be subject to debarment, and all contract awards to the business in reliance upon the inaccurate affidavit or other information may be void or subject to termination for default. Applicability. The small business preference program applies to procurements by a procuring unit. Procedures. Designation of Small Business Preference Contracts. The heads of procurement units or their designees shall screen all procurements potentially eligible for a small business preference and shall determine which of those procurements shall be made under these procedures and the percentage preference to be applied. The determination shall be based on the availability of qualified, certified small businesses and other appropriate factors. Solicitation Notice. A published solicitation for a procurement designated for a small business preference shall include a statement that the procurement has been so designated and shall indicate the price preference percentage to be applied. A designated price preference may not exceed a base percentage preference of 5 percent of the total contract value. A 2 percent preference may be added to the base percentage preference for veteran-owned small businesses and a 3 percent preference may be added to the base percentage preference for disabled-veteran-owned small businesses. The small business preference notice contained in the solicitation shall be substantially as follows: Direct Solicitation. When soliciting bids for a procurement designated for a small business preference, the procuring unit shall send a solicitation or notice of the solicitation to all certified small businesses for the subject of the contract contained on the Governor’s Office of Small, Minority, and Women Business Affairs Certified Small Businesses List. When soliciting bids under the small business preference program, others selected from the business community at large, including certified minority business enterprises, shall also be solicited. Evaluation. When a procurement under COMAR 21.05.02 has been designated for a small business preference, the procurement officer shall accept the most favorable responsive bid from a responsible small business if the bid does not exceed the most favorable responsive bid price received from a responsible bidder that is not certified as a small business by: More than 5 percent; More than 7 percent for a veteran-owned small business; More than 8 percent for a disabled-veteran-owned small business; or The predetermined percentage preference. Small Business Preference (base percentage preference of 5 percent unless otherwise provided) Applicability. All procurements by a procurement unit are eligible for designation as small business reserve procurements. A procurement with a total dollar value between $50,000 and $500,000 shall be designated for the small business reserve. Exemptions. The requirements of the Small Business Reserve Program do not apply to the following procurements: Preference procurements made from a preference provider (Maryland Correctional Enterprises, community service providers, Blind Industries and Services of Maryland, individual-with-disability-owned businesses, and the Maryland Vending Facilities Program for the Blind) under COMAR 21.11.05 and 21.11.09. Procurements involving expenditures of federal dollars, to the extent that their inclusion in the program is in violation of federal law or grant provisions. Procurements with a total dollar value under $50,000. Procurements for human, social, cultural, or educational services. Certain term and master contract procurements when the Governor’s Office of Small, Minority & Women Business Affairs certifies, concurrently with review of any waiver determinations for certified minority business enterprise participation contract goals, that it is not practicable to designate the procurement for the small business reserve. Scope. To the extent practicable, each procurement unit shall structure its procurement procedures to achieve the result that a minimum of 20 percent of the unit's total dollar value of procurements for goods, supplies, services, maintenance, construction, construction-related services, architectural services, and engineering services are expended directly with certified small businesses at the prime contract level. Exclusion. For purposes of computing the procurement units total dollar value of procurements, exempt procurements under §A(2) of this regulation are excluded. Expenditures. Forecasts. Each procurement unit shall, based upon the approved budget and other applicable factors, annually prepare a fiscal year procurement expenditure forecast. The forecast shall project expected expenditures under procurements to be awarded or currently under contract, and the unit shall develop a plan allocating a minimum of 20 percent of the total expected expenditures under these contracts directly to certified small businesses. Included and Excluded Expenditures. Expenditures in a current fiscal year under a multiyear contract awarded in a prior fiscal year shall be included in the procurement unit's forecast and counted toward both total procurement dollars and small business reserve dollars, as applicable. This excludes expenditures under contracts awarded before October 1, 2004. A procuring unit may apply toward the unit's overall annual Small Business Reserve achievement awards made to a small business under designated small business reserve contracts as well as awards made to a small business under nondesignated small business reserve contracts. Expenditures to certified small businesses awarded under small business reserve procurements may be included towards attainment of the small business reserve amount notwithstanding the procurement method used. Solicitation Notice. Each solicitation for bids or proposals for a procurement designated for a small business reserve shall include the following notice: Ineligible Bids or Proposals. Under a small business reserve procurement, a business that is not a certified small business is ineligible for award of a contract. Before awarding a contract under a procurement designated as a small business reserve procurement, the procurement officer shall verify that the apparent awardee is certified by the Governor's Office of Small, Minority, and Women Business Affairs as a small business. A procurement contract award under a small business reserve procurement may not be made to a business that has not been certified. Reporting. The procurement units shall submit a report on the Small Business Reserve Program annually as required under COMAR 21.13.01.03B. SBR Liaison Officer. The head of each procurement unit shall designate an employee to be the SBR liaison officer in the administration of that unit’s small business reserve program. The SBR liaison officer shall be a high-level employee reporting directly to a Secretary, Deputy Secretary, or head of a procurement agency. The SBR liaison officer shall be responsible for coordinating the procurement unit’s outreach efforts to the small business community, reviewing the unit’s contracting procedures to ensure compliance with small business reserve requirements, assisting in the resolution of small business reserve contracting issues, and submitting required small business reserve program reports or information. State Finance and Procurement Article, §§12-101, 14-201—14-208, and 14-501—14-505, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulations .01 and .02 repealed and new Regulations .01—.06 adopted effective July 4, 2005 (32:13 Md. R. 1117) Regulation .01B amended effective February 23, 2009 (36:4 Md. R. 355); February 7, 2011 (38:3 Md. R. 152); March 11, 2019 (46:5 Md. R. 310); March 3, 2025 (52:4 Md. R. 221) Regulation .02B amended effective July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643); March 3, 2025 (52:4 Md. R. 221) Regulation .02C amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .04 amended effective March 11, 2019 (46:5 Md. R. 310); June 29, 2020 (47:13 Md. R. 643) Regulation .04D amended effective February 23, 2009 (36:4 Md. R. 355); February 7, 2011 (38:3 Md. R. 152); May 13, 2013 (40:8 Md. R. 789) Regulation .05 amended effective March 12, 2007 (34:5 Md. R. 562); July 15, 2019 (46:14 Md. R. 623); June 29, 2020 (47:13 Md. R. 643); March 3, 2025 (52:4 Md. R. 221) Regulation .05B amended effective February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310) Regulation .06 amended effective March 11, 2019 (46:5 Md. R. 310) Regulation .06A amended effective March 13, 2006 (33:5 Md. R. 523); February 23, 2009 (36:4 Md. R. 355); September 18, 2023 (50:18 Md. R. 800) Regulation .06B, D amended effective March 3, 2025 (52:4 Md. R. 221) Regulation .06D, G amended effective September 5, 2022 (49:18 Md. R. 819) Regulation .06E amended effective February 23, 2009 (36:4 Md. R. 355); May 13, 2013 (40:9 Md. R. 789) Regulation .06I adopted effective November 24, 2014 (41:23 Md. R. 1376) Regulation .06I amended effective April 29, 2024 (51:8 Md. R. 369) The procedures set forth in this chapter apply to all contracts for the: Construction or maintenance of public works; or Purchase or manufacture of any item of machinery or equipment which: Contains at least 10,000 pounds of steel products, and Is to be installed at a public works site. These procedures do not apply, however, when they are in conflict with any federal grants or federal regulations affecting a contract. In this chapter, the following words have the meanings indicated. Terms defined. “Steel product” means a product rolled, formed, shaped, drawn, extruded, forged, cast, fabricated, or otherwise similarly processed, or processed by a combination of two or more of these operations, for steel made in the United States by open hearth, basic oxygen, electric furnace, Bessemer, or other steel making process. “Public Works” means all buildings, bridges, roads, streets, alleys, ditches, sewage disposal plants, waterworks, and all other structures or works, constructed for public use or benefit or paid for wholly or in part out of public funds, except work done by any public utility company pursuant to an order of the Public Service Commission or other public authority, whether done under public supervision or direction or paid for wholly or in part out of public funds, unless let to contract. “Install” means to make a part of, although not necessarily a permanent part of. For example, equipment installed at a public works site is equipment made a part of the site but capable of being moved from the site without extensive injury to the site or to the equipment, but which, nevertheless, is anticipated to be kept as a part of the site. Examples include but are not limited to a subway car or a gantry-mounted container crane. Every contract of the type described in Regulation .01 shall require the use or supply of steel products as defined in these regulations for all steel that is to be incorporated into the work to be performed under the contract, unless the agency head determines that the cost of steel products is unreasonable or the use of these products is inconsistent with the public interest. The price of any steel product of domestic origin is not unreasonable if: The price does not exceed the sum of the bid or offered price of a similar steel product of foreign origin, plus a differential of 20 percent of the bid or offered price of the steel product of foreign origin; or The steel product is produced in a “substantial labor surplus area” as defined by the United States Department of Labor and the price does not exceed the sum of the bid or offered price of a similar steel product of foreign origin, plus a differential of 30 percent of the bid or offered price of the steel product of foreign origin. At any time before the award of a contract, the agency head or designee may make a determination, that these regulations do not apply to that contract if: There are reasons to believe that the specified steel products are not produced in the United States in sufficient quantities to meet the requirements of the contract; or There are reasons to believe that the purchase of domestic steel products for that contract would be inconsistent with the public interest. If all steel products are not of domestic origin, each bidder or offeror submitting a bid or proposal in response to solicitations for a contract pursuant to Regulation .03 shall identify by name, type, or otherwise, those steel products that are proposed to be of foreign origin, the proposed source of supply, and certify that the bid or offered price of similar domestic steel products is unreasonable pursuant to these regulations. When the bidder or offeror proposes to use steel products of foreign origin and that bid or offer is the apparent most favorable bid or most advantageous offer: Within a reasonable time after bid opening, the bidder or offeror shall submit to the procurement officer, information in support of the claim that the bid or offered price of similar domestic steel products is unreasonable; The procurement officer may undertake independent investigation of the bid or offered price of similar foreign and domestic steel products. If a bidder or offeror fails to prove to the satisfaction of the procurement officer that the bid or offered price of domestic steel products is unreasonable, that bid or offer shall be rejected and the procurement officer may award the contract to the responsible bidder or offeror submitting the next most favorable responsive bid or next most advantageous offer. After award of the contract, the procurement officer is authorized to verify the sources of supply of steel products that are to be incorporated into the work to be performed under that contract. State Finance and Procurement Article, §§12-101 and 17-301—17-306, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulation .01 amended as an emergency provision effective July 1, 1981 (8:13 Md. R. II-3); emergency status expired October 1, 1981 (Emergency provisions are temporary and not printed in COMAR) Regulations .01 and .02 amended effective May 10, 1982 (9:9 Md. R. 912) Regulations .02, .04--.08 amended effective January 9, 1989 (15:27 Md. R. 3138) Annotation: COMAR 21.11.02.02B cited in Attorney General Opinion No. 81-001 (January 15, 1981) (cited to the previous codification at COMAR 11.01.12.02B This chapter provides that maximum contracting opportunities be extended to certified minority business enterprises, as both prime contractors and subcontractors, and establishes that: The Special Secretary of the Governor's Office of Small, Minority & Women Business Affairs, in consultation with the Secretary of Transportation and the Attorney General, shall establish the overall percentage certified MBE participation goal through regulation on a biennial basis. The overall percentage certified MBE participation goal set forth in §C applies until a different percentage goal is established in accordance with §A of this regulation. Each procurement agency shall: Structure its procurement procedures to try to achieve an overall goal of 29 percent of the unit's total dollar value of all procurement contracts made directly or indirectly from certified minority business enterprises; and Apply the guidelines established by the Special Secretary of the Office of Minority Affairs for determining the subgoals to be set for the groups listed in State Finance and Procurement Article, §14-301(j)(1)(i)1, 2, 3, 4, and 6, Annotated Code of Maryland. To the maximum extent feasible, procurement agencies shall use race-neutral measures in meeting the goals under §C of this regulation; Each procurement agency shall work with the Office of Minority Affairs to designate certain contracts to be procured without any certified MBE participation goals. Except as otherwise provided in §B of this regulation, this chapter applies to every procurement of supplies, services, maintenance, construction, construction-related services, architectural services, and engineering services by a procurement agency. Small procurements are not subject to Regulations .08—.16 of this chapter. These procurements shall be made in accordance with COMAR 21.05.07. Procurement agencies shall use the Central Directory established in Regulation .06 of this chapter to solicit certified MBEs in small procurements. Nothing in this chapter is to be construed to relieve a procurement agency from attempting to achieve its goals and subgoals for certified MBE participation. In this chapter, the following words have the meanings indicated. Terms Defined. “Certification” means a determination by the certification agency through the procedures outlined in this chapter that a legal entity is a minority business enterprise for purposes of these regulations. “Certification agency” means the Department of Transportation, Office of Minority Business Enterprise. “Control” means the exercise of the power to manage and operate a business enterprise. “Certified minority business enterprise” means a minority business enterprise that holds a certification issued by the certification agency. Economically Disadvantaged Individual. “Economically disadvantaged individual” means a socially disadvantaged individual whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged. “Economically disadvantaged individual” does not include an individual whose personal net worth exceeds $1,500,000, as adjusted annually for inflation by the certification agency according to State Finance and Procurement Article, §14-301, Annotated Code of Maryland. “Industry type” means the following procurement categories: Construction; Architectural and engineering services and other construction-related professional services; Maintenance; Information technology; Services; Goods, supplies, and equipment; and Real property title insurance services, including commercial real property title insurance services. “Joint venture” means an association of two or more persons to carry out a single business activity for a limited purpose or time. “MBE classification” means the racial, ethnic, or gender classification, as stated in §B(15) of this regulation, assigned to the firm by the certification agency upon the firm obtaining MBE certification. “Minority business enterprise (MBE)” has the meaning stated in COMAR 21.01.02.01B(54). “Office of Minority Affairs” means the Governor's Office of Small, Minority & Women Business Affairs. “Ownership” means: For a sole proprietorship, that the sole proprietor is a socially and economically disadvantaged individual, and if the ownership interest held by a socially and economically disadvantaged individual is subject to formal or informal restrictions such as options, security interests, agreements, etc., held by a person who is not a socially and economically disadvantaged individual, the options, security interests, agreements, etc. held by that person may not significantly impair the socially and economically disadvantaged individual's ownership interest; For a partnership, or limited liability company (LLC), that at least 51 percent of the partnership's or LLC's assets or interests are owned by a socially and economically disadvantaged individual or individuals, and if the ownership interest held by a socially and economically disadvantaged individual is subject to formal or informal restrictions such as options, security interests, agreements, etc. held by a person who is not a socially and economically disadvantaged individual, the options, security interests, agreements, etc. held by that person may not significantly impair the socially and economically disadvantaged individual's ownership interest; and For a corporation, that legal and equitable ownership of at least 51 percent of all voting stock and a cumulative total of at least 51 percent of all class of stock, bonds, or other securities issued by the corporation is owned by socially and economically disadvantaged individuals, and if an ownership interest held by a socially and economically disadvantaged individual is subject to formal or informal restrictions such as options, security interests, agreements, etc. held by a person who is not a socially and economically disadvantaged individual, the options, security interests, agreements, etc. held by that person may not significantly impair the socially and economically disadvantaged individual's ownership interest. Personal Net Worth. “Personal net worth” means the net value of the assets of an individual remaining after total liabilities are deducted. “Personal net worth” includes the individual's share of assets held jointly or as community property with the individual's spouse. “Personal net worth” does not include: An individual's ownership interest in a business applying for certification by the certification agency; The individual's interest in a certified MBE; Equity in the individual's primary place of residence; or Up to $500,000 of the cash value of any qualified retirement savings plans or individual retirement accounts. “Procurement agency” means a principal department or independent unit of the Executive Branch of the State, not otherwise exempted from application of this chapter, that is authorized by law to procure. Race Neutral Methodologies. “Race neutral methodologies” means methodologies that are or can be used to assist all businesses, notwithstanding the social, economic, racial, or sexual composition of those who own or control the business. “Race neutral methodologies” includes: Small business measures under COMAR 21.11.01; Race neutral measures under Regulation .07 of this chapter; and An evaluation of each potential contract to determine and, if practicable, abate any impediments to full and open competition with an emphasis on removing impediments that affect small and disadvantaged businesses. Socially Disadvantaged Individual. “Socially disadvantaged individual” means an individual who has been subjected to racial or ethnic prejudice or cultural bias within American society because of membership in a group and without regard to individual qualities. “Socially disadvantaged individual” does not include an individual disadvantaged from circumstances within the control of the individual. Socially and Economically Disadvantaged Individual. “Socially and economically disadvantaged individual” means a citizen or lawfully admitted permanent resident of the United States who is socially disadvantaged and economically disadvantaged. “Socially and economically disadvantaged individual” is rebuttably presumed to include a member of any of the following groups: African American, which includes an individual having origins in any of the black racial groups of Africa; American Indian/Native American, which includes an individual having origins in any of the original peoples of North America and who is a documented member of a North American Tribe, Band, or otherwise has a special relationship with the United States or a state through treaty, agreement, or some other form of recognition, including an individual who claims to be an American Indian/Native American and who is so regarded by the American Indian/Native American community of which the individual claims to be a part, but not including an individual of Eskimo or Aleutian origin; Asian, which includes an individual having origins in the Far East, Southeast Asia, or the Indian Subcontinent, and who is so regarded by the community of which the person claims to be a part; Hispanic, which includes an individual of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race, and who is so regarded by the community of which the person claims to be a part; Physically or mentally disabled, which includes an individual who has an impairment that substantially limits one or more major life activities, who is regarded generally by the community as having such a disability, and whose disability has substantially limited the individual's ability to engage in competitive business; Women, which includes an individual woman, regardless of race or ethnicity; or Any other individual found by the certification agency to be socially and economically disadvantaged. “Socially and economically disadvantaged individual” does not include an individual whose personal net worth exceeds $1,500,000, as adjusted annually for inflation by the certification agency according to State Finance and Procurement Article, §14-301, Annotated Code of Maryland. “Solicitation notice” means public notice of a solicitation for bids, offers, or expressions of interest which contains the nature of the procurement, relevant dates, the availability of solicitation documents, if any, and other pertinent information. The notice may consist of but is not limited to: Legal advertisement; Newspaper notice; Bid board notice; Bid or proposal documents including the invitation for bids or request for proposals; or eMaryland Marketplace notice. Each procurement agency shall make its procurements in accordance with this chapter. The Interagency Committee on Public School Construction shall require each local board of education to adopt procedures consistent with this chapter before obtaining State funds for public school construction projects. When delegating procurement authority to procurement agencies, the Department of General Services shall condition the delegation on compliance with this chapter. Procurement agencies shall use the forms and affidavits developed by the Governor's Office of Small, Minority & Women Business Affairs, the Board of Public Works, and the Department of Transportation for the certification and reporting procedures required by this chapter. The head of each procurement agency shall designate an employee to be an MBE liaison officer in the administration of that agency's minority business enterprise program. The MBE liaison officer shall be a high level employee reporting directly to a Secretary, Deputy Secretary, or head of a procurement agency. The MBE liaison officer is responsible for coordinating agency outreach efforts to the minority business community, reviewing agency contracting procedures to ensure compliance with this chapter, assisting in the resolution of contracting issues, and for submitting required MBE program reports or information. The certification agency shall publish and maintain in an electronic format available to the general public through the internet a Central Directory of MBEs it has certified under this chapter. The Central Directory shall specify the type of supplies, services, maintenance, construction, construction-related services, architectural services, or engineering services primarily provided by the MBE, and the date of certification. It shall include the address, phone number, and contact person for the MBE, and MBE classifications of each certified business. The Central Directory shall include all contract information available to the certification agency for the MBE except when disclosure is prohibited by State Government Article, Title 10, Subtitle 6, Part III, Annotated Code of Maryland, the certification number of the MBE, and contact information for up to three professional references for the MBE. The Central Directory may include other information the certification agency considers necessary or appropriate to encourage participation in the procurement process by MBEs. The Central Directory shall: Be updated at least monthly; Identify the date of certification for each MBE that has obtained certification during the calendar year; and Include a list of all MBEs that have become ineligible to participate in the MBE Program because: One or more of its owners has a personal net worth exceeding the amount defined under Regulation .03B(11) of this chapter; or The MBE no longer meets the small business size standards, as defined under Regulation .15 of this chapter. The certification agency may include in the Central Directory a listing of “community service providers”, as that term is defined under COMAR 21.11.05.01B(2). Race neutral measures may include: Any outreach efforts to advise small and minority businesses of contracting opportunities within the State in accordance with §§B—D of this regulation; Procurement agencies periodically conducting meetings with minority business enterprises and other small businesses, as appropriate, to advise of procurement opportunities within that procurement agency, which shall be coordinated with the Governor's Office of Small, Minority & Women Business Affairs and other State agencies that make similar procurements; The Governor's Office of Small, Minority & Women Business Affairs periodically convening seminars that include MBEs and small businesses, and appropriate personnel of the various procurement agencies, which shall include topics of interest to prospective or current MBEs and small businesses such as State procurement procedures, certification, and anticipated State procurements, and may include technical assistance to MBEs and small businesses relating to the procurement process from the Office of Minority Affairs; The Governor's Office of Small, Minority & Women Business Affairs providing notice of all seminars and meetings undertaken under the regulation to each MBE listed in the Central Directory or identified under COMAR 21.05.07.06 and each small business listed in the Department of General Services small business vendor lists that may be reasonably expected to be interested in the effort, as well as to those entities described in Regulation .09D of this chapter; Small business procurements, including price preferences, the Small Business Reserve under COMAR 21.11.01, and veteran-owned small business enterprises under COMAR 21.11.14; Use of evaluation factors that do not unreasonably hinder participation by small businesses, including potential use of the economic benefits evaluation factor under COMAR 21.05.03.03(A)(3); Technical Assistance and Business Development programs; and Removal or relaxation of unreasonably restrictive or prohibitive solicitation or contract requirements or both. Within 30 days following the first day of the fiscal year, each procurement agency shall forward to the Governor's Office of Small, Minority & Women Business Affairs a complete listing of all known regularly recurring procurement solicitations reasonably expected to be of $100,000 or more. The list shall be in an electronic format and include the subject of the contract, where the work is to be performed or delivery made, the approximate solicitation date, and the contact information of the procurement officer. The Office of Minority Affairs shall compile a master list containing this information. To attain the overall and specific MBE goals under Regulation .01C of this chapter, procurement agencies shall set, where appropriate, an overall certified MBE participation goal, expressed as a percentage of the dollar value of the contract, and subgoals to facilitate the participation of certain groups as prescribed under Regulation .01C(2) of this chapter, unless: The procurement is a construction contract having an estimated value of less than $50,000; or The contract has been designated as a procurement to be made without any certified MBE participation goals. Goal Setting Generally. A procurement agency shall assess the potential for certified MBE prime contractor and subcontractor participation in each contract, and estimate the amount of participation if any before initiating the procurement. The procurement agency shall use the MBE strategies decided most appropriate for the particular contract. A procurement agency shall consider the practical severability of all contracts and, in accordance with COMAR 21.05.01.08, may not bundle contracts for the purpose of precluding or limiting participation by MBEs or small businesses. The following factors may be used to anticipate the degree of certified MBE prime contractor participation, to decide the certified MBE participation goal and subgoals, when used, and the MBE prime contractor and subcontractor procurement strategy to be used: The extent to which direct solicitation at the prime contract level, subcontracting, or a combination of both is determined most likely to result in maximum certified MBE participation in the contract; The number of certified MBEs listed in the Central Directory or otherwise identified for a particular supply, service, maintenance, construction, construction-related service, architectural service, or engineering service; The geographical proximity, when relevant, of certified MBEs identified under §A(2)(b) of this regulation to the location of the work to be performed; The feasibility of subcontracting opportunities given the nature and extent of the proposed contract; and The guidelines established by the Governor’s Office of Small, Minority & Women Business Affairs for determining the subgoals to be set for the groups listed in State Finance and Procurement Article, §14-301(k)(1)(i)1—4 and 6, Annotated Code of Maryland. Procurement agencies may not use quotas. Procurement agencies may not use any project goal-setting process that: Solely relies on the State’s overall percentage goal, or any other jurisdiction’s overall percentage goal; or Fails to incorporate an analysis of: The potential subcontract opportunities available in the prime procurement contract; The availability of certified MBEs to respond competitively to the potential subcontract opportunities; Guidelines established by the Office of Minority Affairs; and Other factors that contribute to Constitutional goal setting. MBE Subcontracting Provisions. Any contract may contain certified MBE subcontract participation goals, expressed as a percentage of the dollar value of the contract, that the contractor shall attempt to subcontract to certified MBEs. Solicitation Content. Each solicitation identified by a procurement agency as having subcontract opportunities shall contain the clauses required by COMAR 21.05.08.03 and .04. The 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 solicitation shall also contain provisions requiring bidders or offerors including those bidders or offerors that are certified MBEs to: Identify specific work categories within the scope of the procurement appropriate for subcontracting; Solicit certified MBEs in writing at least 10 days before bids or proposals are due, describing the identified work categories and providing instructions on how to bid on the subcontracts; Attempt to make personal contact with the certified MBEs solicited and to document these attempts; Assist certified MBEs to fulfill, or to seek waiver of, bonding requirements; and Attend prebid or other meetings the procurement agency schedules to publicize contracting opportunities to certified MBEs. On forms provided by the procurement agency, a bidder or offeror shall submit with its bid or proposal: A completed MBE utilization and fair solicitation affidavit including either an agreement to meet the certified MBE participation goal or a request for a full or partial waiver; and A completed MBE participation schedule that identifies the certified minority businesses that the bidder or offeror agrees to utilize in the performance of the contract and the percentage of contract value attributed to each MBE. The MBE participation schedule shall: Include the name of each certified MBE that will participate in the project including the certification category under which the MBE is participating; and Include the percentage of the contract to be paid to each MBE for the work or supply. The failure of a bidder to accurately complete and submit the MBE utilization affidavit and the MBE participation schedule shall result in a determination that the bid is not responsive unless the inaccuracy is determined to be the result of a minor irregularity that is waived or cured in accordance with COMAR 21.06.02.04. The failure of an offeror to accurately complete and submit the MBE utilization affidavit and the MBE participation schedule shall result in a determination that the proposal is not reasonably susceptible of being selected for award unless the inaccuracy is determined to be the result of a minor irregularity that is waived or cured in accordance with COMAR 21.06.02.04. The names of prime contractors requesting or purchasing solicitation documents for construction contracts shall be made available on request to any certified MBEs whose specialty suggests an interest in subcontracting. Each prime contractor given solicitation documents as part of a procurement shall be given the web address for the electronic version of the MBE directory for purposes of soliciting subcontract quotations, bids, or offers from certified MBEs. Direct Solicitation. As part of the solicitation process being employed for the business community in general, and in addition to the public notice requirements of COMAR 21.05.02.04 and 21.05.03.02B, a procurement agency shall send a copy of the solicitation or notice of the solicitation, or both, to a sufficient number of certified MBEs listed in the central directory as is likely to result in certified MBE responses to the solicitation. Notification — Organizations and Trade Groups. Except for sole source, small, and emergency procurements, a copy of the solicitation notice for each procurement may be sent in an electronic format to the Office of Minority Affairs for distribution to the appropriate minority business associations, minority business assistance agencies, and trade organizations identified by the Office of Minority Affairs. Prebid and Preproposal Conferences. When prebid or preproposal conferences are held, the procurement agency shall explain the certified MBE subcontracting goal if applicable, the MBE provisions of the solicitation, the documentation required, and its relationship to the determinations that will be made in connection with the evaluation process. Federal Requirements. To the extent required by federal assistance instruments applicable to contracts let by the State under a federal assistance program, only those MBEs meeting federal requirements and criteria shall be used. General. In the event of tie bids, or of offers in which the evaluation of technical and price proposals is essentially equal, a procurement agency may award the contract, in accordance with COMAR 21.05.02.14 or 21.05.03.03F, as applicable, in order to obtain certified MBE participation. In exercising its delegation or control authority over contracts, the Department of General Services may require all determinations under this regulation and Regulation .11 of this chapter to be made before execution of a contract, or approval by the control agency, or both. Accomplishment of Goal. A prime contractor, including a joint venture, shall accomplish an amount of work not less than the MBE subcontract goal with certified MBE subcontractors. Additional Documentation. The documentation in §B(2)—(4) of this regulation is considered as part of the contract, and shall be furnished by the apparent successful bidder or offeror to the procurement officer within 10 working days from notification of apparent award. If the documentation is not furnished within the specified time, the bidder or offeror may be rejected as nonresponsible. No contract award may be made until the documentation is provided to and reviewed by the procuring agency. An MBE subcontractor project participation statement shall be furnished, signed by the bidder or offeror and each MBE listed in the MBE participation schedule, which includes: A statement of intent to enter into a subcontract agreement between the apparent successful bidder or offeror and each proposed MBE subcontractor at the time the State contract is awarded to the apparent successful bidder or offeror; A copy of each subcontract agreement between the apparent successful bidder or offeror and each proposed MBE subcontractor, that the apparent successful bidder or offeror and each proposed MBE subcontractor intend to enter into contingent upon the State’s contract award to the apparent successful bidder or offeror, containing all necessary terms, including pricing, required for the MBE to perform its proposed work and for the apparent successful bidder or offeror to pay the MBE for its work during the contract term; and The amount and type of bonds required of MBE subcontractors, if any. Each MBE proposed as a subcontractor on the recommended contract award shall complete a document stating the percentage and type of work assigned to the proposed MBE subcontractor under the recommended contract award and submit copies of the completed form to both the procurement officer and the apparent successful bidder or offeror. An affidavit shall be completed and signed by the apparent successful bidder or offeror stating that, in the solicitation of subcontract quotations or offers, MBE subcontractors were provided not less than the same information and amount of time to respond as were non-MBE subcontractors. With this affidavit, the apparent successful bidder or offeror shall provide to the procuring agency a list of MBEs with whom the apparent successful bidder or offeror negotiated, including price quotes from minority and nonminority firms. Other documentation considered appropriate by the procurement agency to ascertain bidder or offeror responsibility in connection with the contract MBE participation goal shall be furnished by the bidder or offeror. The procuring agency shall review the documentation submitted under §B(2)—(5) of this regulation and confirm in writing that the submitted documents meet the requirements of this regulation, including verifying that all MBE subcontract agreements contain necessary terms, prior to any State contract award with MBE subcontractor participation. Any MBE utilization affidavit or MBE participation schedule submitted by an apparent successful bidder or offeror that does not include a commitment to achieve the contract goal and any subgoals for MBE participation is an implied request for a full or partial waiver of the remainder of the contract goal or subgoals, as applicable, and the apparent successful bidder or offeror shall submit documentation supporting that waiver request as provided in Regulation .11 of this chapter. The contractor, by submitting the bid or offer, consents to provide that documentation requested by the designated department or procurement agency pursuant to COMAR 21.11.03.13, and to provide right of entry at any reasonable time for purposes of the State's representatives verifying compliance with the MBE subcontractor requirements. Contracts Involving MBE Subcontracts. A contract involving MBE subcontracts is subject to the procurement agency's concluding that the apparent successful bidder or offeror meets the applicable certified MBE participation provisions contained in the solicitation, law, and regulations. Upon review of the documentation submitted under §B of this regulation, the procurement agency shall make a finding whether the apparent successful bidder or offeror has complied in good faith with the outreach efforts required under Regulation .09C(2)(a)—(e) of this chapter. If the procurement agency finds that the apparent successful bidder or offeror has not complied in good faith, the agency may require the apparent successful bidder or offeror to renegotiate any MBE subcontract agreement with a proposed MBE to attempt to meet compliance, without altering the MBE’s proposed participation included in the MBE utilization affidavit or MBE participation schedule. Any renegotiated MBE subcontract agreement shall be reviewed and approved by the procurement agency for compliance prior to any State contract award to the apparent successful bidder or offeror. If the procurement agency finds that the apparent successful bidder or offeror has complied in good faith, the agency may not require the the apparent successful bidder or offeror to renegotiate any subcontract in order to achieve a different result. Solicitation documents completed and submitted by the bidder or offeror in connection with its certified MBE participation commitment shall be made part of the procurement contract. All contracts containing certified MBE participation goals shall contain a liquidated damages provision that applies if the contractor fails to comply in good faith with the provisions of State MBE laws or the pertinent terms of the procurement contract and a provision that prohibits a unit from assessing liquidated damages for an indefinite delivery contract or an indefinite performance contract if a unit fails to request the performance or delivery of a task for which an MBE subcontractor was: Named on the MBE Participation Schedule; or Named on the MBE Participation Schedule and qualified based on the subcontractor’s existing North American Industry Classification System Code. If a procurement agency determines that the apparent successful bidder or offeror has not complied with the certified MBE subcontract participation contract goal, and has not obtained a waiver in accordance with Regulation .11 of this chapter, or if the bidder or offeror fails to submit the documentation required by the solicitation, or fails to comply in good faith with the outreach efforts required under Regulation .09C(2)(a)(e) of this chapter, the procurement officer, upon review by the Office of the Attorney General and approval of the agency head having jurisdiction over the contract, may reject the bid or offer or cancel the award of the contract. The reasons for this action shall be specified in writing and mailed or delivered to the bidder or offeror. If, for any reason, the apparent successful bidder or offeror is unable to achieve the contract goal for each certified MBE classification specified as having a subcontract goal or the overall MBE contract goal, the bidder or offeror shall submit the following documentation in support of a waiver request: A detailed statement of the efforts made to select portions of the work proposed to be performed by certified MBEs, including the work to be performed by each MBE classification if an MBE subgoal has been specified, in order to increase the likelihood of achieving the stated goal; A detailed statement of the efforts made to contact and negotiate with certified MBEs, and if appropriate, by certified MBE classification, including: The names, addresses, dates, telephone numbers, and classification of certified MBEs contacted, and A description of the information provided to certified MBEs regarding the plans, specifications, and anticipated time schedule for portions of the work to be performed; As to each certified MBE that placed a subcontract quotation or offer that the apparent successful bidder or offeror considers not to be acceptable, a detailed statement of the reasons for this conclusion; A list of certified MBEs including, if applicable, certified MBEs in each MBE classification, found to be unavailable, which shall be accompanied by an MBE unavailability verification form signed by the certified MBE, or a statement from the apparent successful bidder or offeror that the certified MBE refused to give the written verification; The record of the apparent successful bidder's or offeror's compliance with the outreach efforts required under Regulation .09C(2)(a)—(e) of this chapter; and If the request for a waiver is for a certain MBE classification within an overall MBE goal, the bidder or offeror shall demonstrate reasonable efforts to meet the overall MBE goal with other MBE classification or classifications. A waiver of a certified MBE contract goal may be granted only upon a reasonable demonstration by the bidder or offeror that certified MBE subcontract participation was unable to be obtained, or was unable to be obtained at a reasonable price or in the appropriate MBE classifications, and if the agency head or designee determines that the public interest is served by a waiver. In making a determination under this section, the agency head or designee may consider engineering estimates, catalogue prices, general market availability, and availability of certified MBEs in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between certified MBE and non-MBE cost of participation, and their impact on the overall cost of the contract to the State and any other relevant factor. An agency head may waive any of the provisions of Regulations .09—.10 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures. When a waiver is granted, except waivers under §C of this regulation, one copy of the waiver determination and the reasons for the determination shall be kept by the MBE liaison officer with another copy forwarded to the Governor's Office of Small, Minority & Women Business Affairs. Not later than July 31 of each year, each procurement agency shall submit directly to the Board of Public Works and the Governor's Office of Small, Minority & Women Business Affairs an Annual Report of Waivers Requested and Waivers Granted under this regulation. The report required under §E of this regulation shall contain the following information on those contracts where Minority Business Enterprise goals, or subgoals, are present and one or more waiver requests have been submitted: The contract titles, numbers, and dates; The number of waiver requests received; The number of waiver requests granted; and Any other information specifically requested by the Board. The Board shall: Retain a copy of the Annual Report of Waivers Requested and Waivers Granted for each agency; and Forward a copy to the General Assembly, the Governor's Office of Small, Minority & Women Business Affairs, and each control agency, before October 1 of each year. If at any time after submission of a bid or proposal and before execution of a contract, a bidder or offeror determines that a certified MBE listed on the MBE participation schedule required under Regulation .09C(3) of this chapter has become or will become unavailable or ineligible to perform the work required under the contract, then the bidder or offeror: Within 72 hours of making the determination, shall provide written notice to the procurement officer; and Within 5 business days of making the determination, may make a written request to the procurement officer to amend the MBE participation schedule. For purposes of this regulation, “ineligible” means an MBE certified by the certification agency that may not be counted toward meeting the MBE subcontract participation goal established for the procurement because: The MBE is not certified by the certification agency to provide the services, materials, or supplies the bidder or offeror has committed the MBE to provide on the MBE participation schedule; The MBE has graduated from the NAICS Code associated with the services, materials, or supplies the bidder or offeror has designated the MBE to provide; or The MBE no longer meets the personal net worth requirements of Regulation .03 of this chapter. The request to amend the MBE participation schedule shall include: An explanation of the reason for inclusion of the unavailable or ineligible firm on the original MBE participation schedule; The name of each certified MBE subcontractor that will substitute for the unavailable or ineligible certified MBE subcontractor; A description of work to be performed by each certified MBE subcontractor; The percentage of the contract to be paid to the certified MBE subcontractor for the work or supply; and A full description of the bidder’s or offeror’s efforts to substitute another certified MBE subcontractor to perform the work that the unavailable or ineligible certified MBE subcontractor would have performed. The procurement officer shall consult with the MBE liaison before deciding whether to approve a request to amend the MBE participation schedule. Amendments to the MBE participation schedule occurring after the date of contract award. For purposes of this regulation, “good cause” includes documented nonperformance by the certified MBE or election by the certified MBE to cease work on the contract. Failure of the certified MBE to provide a bond as requested by the contractor is not considered to be nonperformance by the certified MBE if the requested bond violates State Finance and Procurement Article, §13-227, Annotated Code of Maryland. A contractor may not terminate or otherwise cancel the contract of a certified MBE listed on the MBE participation schedule without: Showing good cause why the contract with the certified MBE should be terminated or cancelled; Obtaining the prior written consent of the MBE liaison; Obtaining approval of the head of the unit; and Subsequently amending the contract. The procurement agency shall send a copy of the MBE liaison written consent to the Governor's Office of Small, Minority & Women Business Affairs. General. When a certified MBE participates in a contract, the procurement agency shall consider §§B, C, D, and E of this regulation in determining whether and the extent to which the certified MBE’s participation may be counted toward the MBE participation goals. Commercially Useful Function. A procurement agency may count participation of a certified MBE contractor toward MBE goals only if the certified MBE is performing a commercially useful function on that contract. Commercially Useful Function. A certified MBE performs a commercially useful function when it is responsible: For execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved; and With respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a certified MBE is performing a commercially useful function, the procurement agency shall evaluate: The amount of work subcontracted; Industry practices; Whether the amount the certified MBE is to be paid under the contract is commensurate with the work it is actually performing; and Other relevant factors. A certified MBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of MBE participation. In deciding whether a certified MBE is such an extra participant, the procurement agency may examine similar transactions, particularly those in which MBEs do not participate. A certified MBE is presumed not to perform a commercially useful function if it does not perform or exercise responsibility for at least 30 percent of the total dollar value of its contract with its own work force, or the certified MBE subcontracts a greater portion of the work of a contract than would be expected on the basis of industry practice for the type of work involved. A procurement agency may, however, upon evaluation of the work involved and industry practices, decide that the certified MBE is performing a commercially useful function. Joint Venture. When a certified MBE performs as a participant in a joint venture, a procurement agency may count, subject to §D of this regulation, a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the certified MBE performs with its own forces toward fulfilling the contract goal and not more than one of the contract subgoals, if any. Counting Participation of Certified MBE Prime. This section shall apply to contracts that are solicited and awarded on or after June 9, 2014. Subject to the requirements of §B of this regulation and Regulation .09C of this chapter, when a certified MBE participates as a prime contractor on a contract, a procurement agency may count the distinct, clearly defined portion of the work of the contract that the certified MBE performs with its own forces toward fulfilling up to 50 percent of the MBE participation goal and up to 100 percent of not more than one of the MBE participation subgoals, if any, established for the contract, provided that the certified MBE prime contractor is: Identified on the MBE participation schedule pursuant to Regulation .09C(3)(b) of this chapter, including the certification category under which the MBE prime is self-performing and the percentage of the contract value attributed to that work; and Certified by the certification agency to provide the services, materials, or supplies that it has committed itself to self-perform on the MBE participation schedule. Counting Value of Supplies and Equipment. For purposes of this section, “regular dealer” means: A firm that owns, operates, or maintains a store, a warehouse, or any other establishment in which the materials, supplies, articles, or equipment are of the general character described by the specifications required under the contract and are bought, kept in stock, or regularly sold or leased to the public in the usual course of business; and Does not include a packager, a broker, a manufacturer’s representative, or any other person that arranges or expedites transactions. If the certified MBE is a regular dealer, then a procurement unit may apply only 60 percent of the costs of the materials and supplies provided by the regular dealer toward the MBE participation goal. If the certified MBE is neither a regular dealer nor a manufacturer, a procurement unit: May not count any portion of the costs of the materials and supplies toward the MBE participation goal; and May count the entire amount of the fees or commissions charged for assistance in procuring materials and supplies, fees, or transportation charges for delivering the materials and supplies required on a procurement toward the MBE participation goal if the procurement unit determines the fees: Are reasonable; and Not excessive as compared with fees customarily allowed for similar services. Counting Participation of a Certified Business Owned by a Woman of an Ethnic or Racial Group. A certified MBE may be counted as a woman-owned business, a business owned by a member of an ethnic group or racial group, or both, if the business has been certified in both categories. To ensure compliance with certified MBE participation goals, the procurement agency shall: Verify that the certified MBEs listed in the MBE participation schedule are actually performing work and receiving compensation as set forth in the participation schedule; and Monitor and collect data on contractor compliance with contract MBE participation goals. The contractor shall: Permit the procurement agency to inspect any relevant matter, including records and the jobsite and to interview subcontractors and workers; If performing a State construction contract, ensure that all subcontractors are paid any undisputed amount to which the subcontractor is entitled within 10 calendar days of receiving a progress or final payment from the State and otherwise comply with COMAR 21.10.08 which sets forth the obligations of the prime contractor, contractors, and subcontractors and the remedies for delinquency or nonpayment of undisputed amounts, in State construction contracts. Submit monthly to the procurement agency a report listing payments made to each MBE subcontractor in the preceding 30 days and any unpaid invoices over 30 days old received from a certified MBE subcontractor, and the reason payment has not been made; and Include in its agreements with its certified MBE subcontractors a requirement that the certified MBE subcontractors submit monthly to the procurement agency a report identifying the prime contract, and listing: Payments received from the contractor in the preceding 30 days, and Invoices for which the subcontractor has not been paid. Upon determining that a contractor did not make good faith efforts to comply with contract MBE participation goals, the procurement agency shall notify the contractor in writing of its findings and shall specify what corrective actions are required. The contractor is required to initiate the corrective actions within 10 days and complete them within the time specified by the procurement agency. If a procurement agency determines that material noncompliance with MBE contract provisions exists and that the prime contractor refuses or fails to take the corrective action required by the procurement agency, then the following sanctions may be invoked: Termination of the contract; Referral to the Office of the Attorney General for appropriate action; or Initiation of any other specific remedy identified by contract. Upon completion of the project, the procurement agency shall: Prepare a report that compares the dollar value of the payments actually received by MBEs with the dollar value of the amount that MBEs were intended to have received under the contract's MBE participation goal; and Include in the report an explanation of any discrepancy. A procurement agency may use any other compliance mechanism authorized by contract or this title. A procurement agency may, upon completion of a contract, and before final payment or release of retainage or both, require that a prime contractor on any contract having an MBE subcontract goal, submit a final report, in affidavit form and under penalty of perjury, of all payments made to, or withheld from, MBE subcontractors. The solicitation shall contain notice of this provision. The Department of Transportation is the agency designated to certify, recertify, and decertify MBEs. A procurement agency may not permit a person to participate in a procurement as a certified MBE unless the Department of Transportation has certified the person as a minority business enterprise. Procedure. Contractors seeking MBE certification shall apply to the Department of Transportation. Certification procedures, including procedures for recertification and decertification, are those set forth in COMAR 11.01.10.01, which incorporates by reference the Department of Transportation “Minority Business Enterprise Program”. Graduation. If a certified MBE meets or exceeds the small business size standards specified in 13 CFR Part 121, as amended, which is incorporated by reference, the MBE is no longer eligible to participate in a procurement as a certified MBE. The MBE is still eligible for credit towards an MBE goal under a contract entered into when the MBE was eligible and certified. Ineligibility of an MBE to participate in the MBE program may not be the sole cause of the termination of the MBE contractual relationship for the remainder of the term of the contract. If, during the next 3 years, the MBE again becomes qualified under the small business size standards specified in 13 CFR Part 121, as amended, which is incorporated by reference, the MBE may resume participation as a certified MBE through the recertification process. If, after 3 years of nonparticipation, the MBE continues to meet or exceed the small business size standards under 13 CFR Part 121, as amended, which is incorporated by reference, the MBE is considered to have graduated and will no longer be certified. Information Which May Be Requested. The Department of Transportation may request the following information to assist in any certification, recertification, decertification, participation, or graduation determination. Failure to furnish the requested information within a reasonable time as specified in writing may result in an administrative closing of an application, a denial of certification or recertification, or a determination to decertify. The information consists of: Copies of articles of incorporation, bylaws, minutes, shareholder agreements, stock certificates, stock transfer ledgers, any additional profit-sharing agreements or buyout rights, or in the case of a partnership, the partnership agreement; Current financial statements, business licenses, federal personal income tax returns for the most current 2 years, including all schedules, federal business tax returns for the past 3 years, including all schedules, cancelled checks, resumes of principal parties, and any relevant personal and third-party agreements, such as rental and management agreements; Documentation of certifications received from other public entities including “on-site certification review reports”; and Other information the Department of Transportation determines is necessary. A business that has received certification from a federal or county MBE program that uses a certification process substantially similar to the process established in this regulation shall be eligible for certification by the Department of Transportation as a State-certified MBE if the business: Has obtained certification under the Federal Disadvantaged Business Enterprise Program; and Meets the eligibility requirements of the State Minority Business Enterprise Program. Each procurement agency shall make a report annually within 90 days following the close of the fiscal year to the Governor’s Office of Small, Minority & Women Business Affairs, the Department of Transportation, and, subject to State Government Article, §2-1257, Annotated Code of Maryland, to the Joint Committee on Fair Practices and State Personnel Oversight that includes for the preceding fiscal year: The total number and value of procurement contracts between the procurement agency and certified MBEs, by specific MBE category and by industry type, including whether the MBE participated as a prime contractor or as a subcontractor; The percentage that those procurement contracts represent, by specific MBE category and by industry type, of the total number and value of procurement contracts; The total number and the names of certified MBEs that participated as prime contractors or as subcontractors on procurement contracts awarded by a unit; For each MBE included in the report under §A(3) of this regulation, a list of all procurement contracts awarded by the procurement agency to that MBE, including a description of the contract and industry type; The results of each compliance assessment conducted by the procurement agency under Regulation .13 of this chapter, including for each contract completed during the fiscal year: The names of each prime contractor and each subcontractor that participated in the contract; The type of good or service provided by the contract; The MBE participation goal for the contract; Whether a waiver was granted for the MBE participation goal; The total dollar value of payments made to each prime contractor and by each prime contractor to each subcontractor during the contract term; Whether each subcontractor is a certified MBE; and If applicable, a description of factors that may have contributed to failure to achieve the MBE participation goal for the contract, including documented nonperformance or unavailability of a MBE; The number of waivers granted pursuant to Regulation .11 of this chapter; and An evaluation by the procurement agency of the success of its MBE program, which evaluation shall include a brief description of the procurement agency's outreach efforts to MBE prime contractors and MBE subcontractors. As to procurement contracts for architectural services and engineering services reported under §A of this regulation, the report shall identify by separate category of MBE procurements for: Architectural services; and Engineering services. A report under §A of this regulation shall be in a form prescribed by the Governor’s Office of Small, Minority & Women Business Affairs and the Department of Transportation and approved by the Board of Public Works. The Special Secretary for the Governor's Office of Small, Minority & Women Business Affairs may waive the requirement for a procurement agency to report MBE participation by industry type under §A of this regulation except for real property title insurance services if the spending threshold for the industry type is too low for the unit to provide sufficient data. Each procurement agency shall submit to the Board of Public Works and the Governor's Office of Small, Minority & Women Business Affairs by July 31 of each year the report of waivers required under Regulation .11E of this chapter. Each procurement agency shall furnish any other information or periodic reports requested by the Governor's Office of Small, Minority & Women Business Affairs or the Department of Transportation in connection with MBE certification and procurement, or any other matters related to the administration, effectiveness, or continuation of the Minority Business Enterprise Program. The Governor’s Office of Small, Minority & Women Business Affairs shall prepare an annual report summarizing the information the Governor’s Office of Small, Minority & Women Business Affairs receives under §A of this regulation, for submission by the end of each calendar year to the Board of Public Works and, subject to State Government Article, §2-1257, Annotated Code of Maryland, the Legislative Policy Committee of the Maryland General Assembly, and to each procurement agency. If applicable, this report shall include MBE participation data for each unit by industry type. State Finance and Procurement Article, §§12-101 and 14-301—14-308, Annotated Code of Maryland; Effective date: June 4, 1984 (11:11 Md. R. 965) Chapter revised effective January 9, 1989 (15:27 Md. R. 3138) Regulation .03B amended effective September 2, 1991 (18:17 Md. R. 1922); July 20, 1992 (19:14 Md. R. 1286) Regulation .04E amended effective September 2, 1991 (18:17 Md. R. 1922) Regulation .06 amended effective September 2, 1991 (18:17 Md. R. 1922) Regulation .10A, B amended effective September 2, 1991 (18:17 Md. R. 1922) Regulation .15 amended effective September 2, 1991 (18:17 Md. R. 1922) Regulation .16 repealed and new Regulation .16 adopted effective September 2, 1991 (18:17 Md. R. 1922) Regulation .17 amended effective September 2, 1991 (18:17 Md. R. 1922) Regulation .17A amended effective January 2, 1995 (21:26 Md. R. 2192) Chapter revised effective May 20, 1996 (23:10 Md. R. 733) Regulation .01B amended effective January 22, 2001 (28:1 Md. R. 27) Regulation .04C amended effective March 8, 1999 (26:5 Md. R. 393) Regulation .15B amended effective May 1, 2000 (27:8 Md. R. 799) Chapter revised effective March 18, 2002 (29:5 Md. R. 505) Regulation .11E—G adopted effective May 24, 2004 (31:10 Md. R. 796) Regulation .17 amended effective May 24, 2004 (31:10 Md. R. 796) Chapter revised effective April 11, 2005 (32:7 Md. R. 685) Regulation .01 amended effective July 26, 2010 (37:15 Md. R. 1000); December 12, 2011 (38:25 Md. R. 1582); May 13, 2013 (40:9 Md. R. 789); August 19, 2013 (40:16 Md. R. 1345) Regulation .01D adopted effective February 7, 2011 (38:3 Md. R. 152) Regulation .02C amended effective May 13, 2013 (40:9 Md. R. 789) Regulation .03B amended effective November 7, 2005 (32:22 Md. R. 1759); January 14, 2010 (37:1 Md. R. 16); May 13, 2013 (40:9 Md. R. 789); September 18, 2023 (50:18 Md. R. 800); March 3, 2025 (52:4 Md. R. 221) Regulation .04 amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .04C amended effective January 14, 2010 (37:1 Md. R. 16) Regulation .04E amended effective May 13, 2013 (40:9 Md. R. 789) Regulation .06 amended effective January 14, 2010 (37:1 Md. R. 16) Regulation .06B, D amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .07A amended effective July 26, 2010 (37:15 Md. R. 1000) Regulation .07E amended effective May 13, 2013 (40:9 Md. R. 789) Regulation .08 amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); December 12, 2011 (38:25 Md. R. 1582) Regulation .09 amended effective December 12, 2011 (38:25 Md. R. 1582); May 13, 2013 (40:9 Md. R. 789) Regulation .09A amended effective July 26, 2010 (37:15 Md. R. 1000); August 19, 2013 (40:16 Md. R. 1345); January 2, 2017 (43:26 Md. R. 1449) Regulation .09B amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .09C amended effective April 7, 2008 (35:7 Md. R. 751); January 14, 2010 (37:1 Md. R. 16); May 31, 2010 (37:11 Md. R. 766); July 15, 2019 (46:14 Md. R. 623); September 18, 2023 (50:18 Md. R. 800) Regulation .09E amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .10 amended effective May 13, 2013 (40:9 Md. R. 789) Regulation .10A amended effective May 2, 2022 (49:9 Md. R. 531) Regulation .10B amended effective April 7, 2008 (35:7 Md. R. 751); March 11, 2019 (46:5 Md. R. 310) Regulation .10B, C amended effective December 25, 2023 (50:25 Md. R. 1090) Regulation .10B, E amended effective July 15, 2019 (46:14 Md. R. 623) Regulation .11A amended effective July 15, 2019 (46:14 Md. R. 623) Regulation .11E amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .12 amended effective April 7, 2008 (35:7 Md. R. 751); December 12, 2011 (38:25 Md. R. 1582) Regulation .12A, E amended effective March 11, 2019 (46:5 Md. R. 310) Regulation .12C, E amended effective May 13, 2013 (40:9 Md. R. 789) Regulation .12-1 adopted effective December 12, 2011 (38:25 Md. R. 1582) Regulation .12-1A amended effective March 11, 2019 (46:5 Md. R. 310) Regulation .12-1C, D amended effective June 9, 2014 (41:11 Md. R. 605) Regulation .12-1E adopted effective March 11, 2019 (46:5 Md. R. 310) Regulation .12-1F adopted effective May 2, 2022 (49:9 Md. R. 531) Regulation .12-1F amended effective September 5, 2022 (49:18 Md. R. 819) Regulation .13 amended effective May 13, 2013 (40:9 Md. R. 789) Regulation .13A amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .14 repealed effective December 12, 2011 (38:25 Md. R. 1582) Regulation .15 amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .15B amended effective May 22, 2006 (33:10 Md. R. 882); April 7, 2008 (35:7 Md. R. 751) Regulation .15D adopted effective June 29, 2020 (47:13 Md. R. 643) Regulation .16A, B amended effective April 7, 2008 (35:7 Md. R. 751) Regulation .16 repealed effective March 3, 2025 (52:4 Md. R. 221) Regulation .17 amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .17A amended effective April 7, 2008 (35:7 Md. R. 751); January 14, 2010 (37:1 Md. R. 16); July 26, 2010 (37:15 Md. R. 1000); February 7, 2011 (38:3 Md. R. 152); April 28, 2014 (41:8 Md. R. 473) Regulation .17B amended effective April 7, 2008 (35:7 Md. R. 751) In this chapter, the following words have the meanings indicated. Terms Defined. “Administration” means any one of the following units of the Department of Transportation: Maryland Port Administration; Motor Vehicle Administration; State Aviation Administration; State Highway Administration; Maryland Transportation Authority; Mass Transit Administration; State Railroad Administration; and Office of Assistant Secretary, Administration. “Administration Equal Opportunity (EO) Officer” means an employee of the Department skilled in civil rights policies, practices, procedures, and equal opportunity compliance review and evaluation functions. “Administrator” means the chief executive officer of an administration. “Affirmative actions” means the efforts exerted toward achieving equal employment opportunity (EEO) through positive, aggressive, and continuous results-oriented measures to correct past and present discriminatory practices and their effects on the conditions and privileges of employment. “Board representative” means the official appointed by the Board to review contractor affirmative action plans. “Certification” means the action by which the Board Representative acknowledges that the contractor's affirmative action plan meets the requirements as presented by Article III, §C of the Governor's Amended Code of Fair Practices. “Community resources list” means a compilation of local or State-wide organizations, agencies, community groups, and leaders, prepared as a guide for use by a contractor in implementing the contractor's affirmative action plan. “Contractor affirmative action plan compliance monitoring process” means the procedure used by the Department to assure that contractors are complying with their affirmative action requirements. “Corrective action” means specific actions, as included in the contractor's written and signed commitment to be taken with time limits and goals, to remedy a violation of applicable equal employment opportunity regulations. “Discrimination” means a distinction in treatment, whether intentional or unintentional, based on political or religious opinion or affiliation, race, color, creed, national origin, sex, physical or mental handicap, or age, except when sex, handicap, or age involves a bona fide job requirement. “Equal employment opportunity requirements” means all contract provisions relative to equal employment opportunity. “Equal employment opportunity (EEO)” means the absence of partiality or distinction in employment treatment, so that the rights of all persons to work and advance on the basis of merit, ability, and potential are maintained. “E.E.O.C.” means the Federal Equal Employment Opportunity Commission. “Equal opportunity compliance review” means an evaluation and determination of a contractor's or subcontractor's compliance with equal opportunity requirements. “Good faith effort” means a results-oriented positive action designed to achieve an affirmative action objective or goal. “Office of the Secretary, Contract Staff” means the unit within the Office of the Secretary responsible for meeting with the Board on contractual matters other than certification as defined above. “Show cause notice” means a written notification to a contractor based on the determination of an equal-opportunity officer indicating non-compliance with the equal opportunity requirements as provided for in the special provisions of the bid document, and the contractor's affirmative action plan, and Article III of the Executive Order promulgating the Code of Fair Practices (amended). “Special provisions respecting contractor affirmative action plans” means the equal opportunity requirements which, when translated into an affirmative action plan, legally obligates the contractor to take affirmative actions as provided for in the contractor's affirmative action plan. Contract Advertisement. All bids or offers on construction contracts shall include the Pre-Approved Contractor Affirmative Action Plan which outlines the contractor's and subcontractors' responsibilities to insure equal opportunity. When vendors secure the project plans and specifications, with the provisions included, they also shall receive a copy of the Minority Business Enterprise List and the Community Resources List to use as reference materials in developing and implementing their Affirmative Action Plans. Pre-Bid or Pre-Proposal Conference. When a pre-bid or pre-proposal conference is held, the Administration Equal Opportunity Officer shall explain the Pre-Approved Contractor Affirmative Action Plan and the use of resource materials provided to assist contractors in implementing their Affirmative Action Plans if they are selected as the successful bidder or offeror. Submissions. The vendors shall submit their bids or proposals in accordance with instructions issued by an Administration. Selection of Contractor. The Administration shall select the responsible bidder or offeror submitting the most favorable bid or most advantageous offer. Administration Submittal. The Administration shall submit the Pre-Approved Contractor Affirmative Action Plan along with other contract documents to the Contract Unit, OASA for the Board's action. Board of Public Works Action. The Board reviews and approves the contract. Administration Action. The Administration issues a “Notice to Proceed”. Once the Board has approved a contract, and a “notice to proceed” has been issued by the Administration, the formal contractor affirmative action plan compliance monitoring process begins and continues throughout the life of the contract. The Administration's equal opportunity officer will contact the contractor to review specific compliance requirements and to give the contractor a compliance assistance package containing suggested guidelines and forms. The following points shall be considered made when priorities are established for an on-site compliance review: Whether there has been compliance with the approved affirmative action plan based on an evaluation of reports and documents; Whether contracts are being performed in a geographic area where there is a significant minority labor force or female labor force, or both, within a reasonable recruitment area; Whether contracts are being let which hold a great potential for employment and promotion of minorities and women. The Administration's equal opportunity officer shall provide written notification to the contractor (copies to the Administrator and the DOT equal opportunity officer) of a pending compliance review at least 14 days before the on-site verification and interview stage of the compliance process. This will also serve as notification to the contractor of the scheduled date and location of the review and the time period to be covered by the review. The Administration's equal opportunity officer will conduct an on-site inspection of the project and inspect records to assure compliance with the contractor's approved affirmative action plan. There shall be an exit conference at which time the Administration's equal opportunity officer shall discuss any preliminary findings with the contractor that could lead to a determination of non-compliance. The Administration's equal opportunity officer shall discuss both the voluntary corrective actions that may have been implemented as a result of the visit and also the process and time by which the contractor will be informed of the final compliance determination. After the completion of the on-site verification phase, the Administration's equal opportunity officer shall review all available information including that which was provided by the contractor and obtained from on-site visits and also prepare a status report indicating compliance or non-compliance. A copy of the report shall be provided to the contractor. If the Administration's equal employment officer determines that the contractor is in compliance, the contractor shall receive written notification to that effect and copies of the notification shall be sent to the DOT equal opportunity officer, the Administrator, and the Board representative. If it is determined that a contractor appears not to be in compliance with the affirmative action plan, the Administrator or designated representative shall issue a “show-cause notice”. This notice demands that the contractor show cause why the contractor should not be found not to be in compliance. This notice shall delineate a list of the deficiencies, establish a compliance conference date, outline the possible administrative actions that can be taken, and provide a forum for the contractor to present the contractor's case. A compliance conference shall be held by the Administrator or a designated representative, the Administration's equal opportunity officer, and the contractor to discuss the deficiencies. If a contractor corrects the deficiencies, the “show-cause notice” shall be rescinded. The contractor shall be so notified, by letter, confirming that the contractor is in compliance. If a contractor refuses to make the necessary corrections to cause a rescission of the “show-cause notice”, the Administrator shall take the appropriate steps to begin administrative action to compel the contractor to comply with the affirmative action plan. Except for those contracts that go before the Board for approval, the Secretary of Transportation shall have the final approval on all administrative actions imposed on contractors found to remain not in compliance. In those instances when the Board has the final authority, the Secretary shall recommend that sanctions be imposed. State Finance and Procurement Article, §12-101, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulations .01 amended effective January 9, 1989 (15:27 Md. R. 3138) Regulations .01B amended effective May 2, 2022 (49:9 Md. R. 531) Regulations .02 amended effective January 9, 1989 (15:27 Md. R. 3138) Regulations .03 amended effective January 9, 1989 (15:27 Md. R. 3138) Regulations .03I amended effective May 2, 2022 (49:9 Md. R. 531) In this chapter the following words have the meanings indicated. Terms Defined. “Blind Industries and Services of Maryland” means the entity designated by law to produce supplies manufactured and assembled by processes involving blind workers. “Community service provider” means an entity, the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual, that is: Organized under the laws of the United States or the State of Maryland; Accredited by the Division of Rehabilitation Services of the State Department of Education for participation in the Employment Works Program; and Operated in the interests of individuals who have a mental or physical disability, including blindness, that: Constitutes a substantial barrier to employment; and Prevents the individual from engaging in competitive employment. “Employment Works Program” means the program established in the Department of General Services by State Finance and Procurement Article, §14-108, Annotated Code of Maryland. “Fair market price” means that price established in accordance with Regulation .03 of this chapter for a supply or service provided by a selling entity other than Maryland Correctional Enterprises. “Individual-with-disability-owned business” means a business: That is organized under the laws of the United States or of the State; That is majority owned by an individual or individuals determined by the Division of Rehabilitation Services in the State Department of Education to have a disability, as defined by Education Article, Title 21, Subtitle 3, Annotated Code of Maryland; Whose majority owner or owners are directly and significantly engaged in the daily operation of the business; Whose workforce includes individuals with disabilities comprising a percentage of the workforce that is at or above the minimum required under the policies or guidelines established by the Pricing and Selection Committee for Preferred Providers; Whose total gross revenues for contracts assigned under the Employment Works Program at the time of assignment do not exceed the maximum allowed under policies or guidelines established by the Pricing and Selection Committee for Preferred Providers; and That continues to meet all other eligibility criteria established by the Pricing and Selection Committee for Preferred Providers. “Maryland Correctional Enterprises” means a unit of the Division of Corrections of the Department of Public Safety and Correctional Services that is authorized by law to use prison labor to produce supplies or to provide services for sale to public entities and certain not-for-profit organizations. “Master list” means a consolidated catalog, produced at least annually, that lists the supplies and services subject to procurement under this chapter. The master list indicates: The selling entity from which a particular supply or service may be purchased; The fair market price at which the supply or service will be sold; and The ordering priority under Regulation .07C or D of this chapter if the supply or service can be furnished by more than one selling entity. “Preferred Provider” means a provider of supplies or services given preference under this chapter. “Prevailing average market price” means the current averaged competitive price as determined by the Pricing and Selection Committee for Preferred Providers for the same or substantially similar supply or service provided by State Use Industries. “Pricing and Selection Committee for Preferred Providers” means the pricing authority responsible for reviewing and verifying the prevailing average market prices as proposed by Maryland Correctional Enterprises, setting the prices of supplies and services that Blind Industries and Services of Maryland provides to reflect the fair market prices for those supplies and services, and determining the fair market price of supplies, services, and other sales that the Employment Works Program community services providers and individual-with-disability-owned businesses provide, among other duties in accordance with State Finance and Procurement Article, §14-106, Annotated Code of Maryland. “Selling entity” means Maryland Correctional Enterprises, the Blind Industries and Services of Maryland, Employment Works Program community service providers, or individual-with-disability-owned businesses. “State aided or controlled entity” means any public or quasi-public institution that receives aid from the State or that is owned, controlled, or managed by the State. Except as otherwise provided in these regulations, this chapter applies to every procurement of supplies or services that can be provided by a selling entity. Only supplies and services that directly benefit Division of Correction inmates, blind persons, or disabled persons, through meaningful work experiences, occupational opportunities, vocational rehabilitation and training, and work therapy, are to be provided by the selling entities. This chapter does not apply to supplies or services provided under subcontract to a selling entity. Nothing in this chapter shall require a procurement agency to lessen or otherwise alter its reasonable performance, quality, design, delivery, or quantity specifications in order to meet a selling entity's ability to provide a supply or service. Except as specifically provided in these regulations, nothing contained in this chapter shall limit or define a procurement agency's rights or remedies otherwise available by law or by contract. Services procured from an Employment Works Program community service provider are not subject to the cost savings requirements of State Personnel and Pensions Article, §13-405, Annotated Code of Maryland. In determining fair market prices for services or supplies, the Pricing and Selection Committee for Preferred Providers may consider: The price on the open market of a similar quantity of services or supplies of equal quality and standards that meet the requirements of the procurement agencies; The price last paid as a result of a competitive procurement selection process for substantially similar services or supplies as adjusted for inflation, deflation, or other change in market conditions; A reliable independent appraisal of the value of substantially similar services or supplies; A procurement agency's or control authority's reasonable estimate of the cost of substantially similar services or supplies and any other pertinent information; and The cost of the services if performed by State personnel. If the fair market price for a service or supply cannot be determined absent a competitive procurement, the solicitation shall notify prospective bidders or offerors that one or more selling entities may respond to the solicitation and that any subsequent contract may be awarded to a selling entity if its bid or offer is deemed a fair market price by the Pricing and Selection Committee for Preferred Providers. Any negotiations conducted with a selling entity for the purpose of establishing a fair market price for a contract for services shall include a representative from the procurement agency. The Pricing and Selection Committee for Preferred Providers shall: Determine the prevailing average market prices for supplies and services provided by Maryland Correctional Enterprises; Determine the fair market prices for supplies and services provided by Maryland Correctional Enterprises; Include in the master list: A listing of those supplies and services available for procurement from Maryland Correctional Enterprises, The fair market price for each supply and service, Any necessary instructions governing the procurement of a supply or service from Maryland Correctional Enterprises; Compile, publish, and distribute, at least annually, the master list, which shall include: Listings of supplies and services available from each of the selling entities, The fair market prices of those supplies and services, Instructions governing the procurement of those supplies and services, including the order of procurement priority when the same or substantially similar supply or service can be provided by more than one selling entity; Consult periodically with the procurement agencies and the selling entities to establish reasonable and uniform standards, including those governing quantity, quality, style, design, and delivery; and Designate an appropriate coordinating entity to facilitate distribution of procurement contracts among sheltered workshops. Review and verify the prevailing average market prices, as proposed by Maryland Correctional Enterprises, when changes are made to the pricing of existing goods and services that are available from Maryland Correctional Enterprises or for new goods or services that Maryland Correctional Enterprises intends to make available; Meet as often as necessary, at the call of any of its members, but at least annually; Ensure that supplies, services, or other sales provided by Blind Industries and Services of Maryland or an Employment Works Program community service provider create work opportunities for individuals who have a mental or physical disability, including blindness, for which Blind Industries and Services of Maryland or the Employment Works Program community service provider was established to assist; Choose appropriate supplies, services, or other sales for Employment Works Program community service providers and individual-with-disability-owned businesses to offer for procurement; Except for services and supplies provided under the Maryland Blind Vending Program, set prices to reflect the fair market prices of supplies, services, or other sales that Blind Industries and Services of Maryland, Employment Works Program community service providers and individual-with-disability-owned businesses provide; Adjust prices for the supplies, services, or other sales that Blind Industries and Services of Maryland and Employment Works Program community service providers and individual-with-disability-owned businesses provide, in accordance with market conditions; At the request of an Employment Works Program community service provider or an individual-with-disability-owned business, review and, if appropriate, change the price of a supply, service, or other sale; Establish and periodically review eligibility policies or guidelines for participating Employment Works Program community service providers and individual-with-disability-owned businesses; Maintain a current list of Employment Works Program community service providers and individual-with-disability-owned businesses; Periodically review and revise the list of Employment Works Program community service providers and individual-with-disability-owned businesses, and send any revised list to the Chief Procurement Officer, who shall make the list available to each person responsible for buying supplies or services for the State or a State aided or controlled entity; Maintain current lists of supplies, services, or other sales that Maryland Correctional Enterprises, Blind Industries and Services of Maryland, and Employment Works Program community service providers and individual-with-disability-owned businesses provide; Periodically review and revise the lists of supplies, services, or other sales maintained in accordance with §Q of this regulation, and send any revised list to the Chief Procurement Officer, who shall make the lists available to each person responsible for buying supplies or services for the State or a State aided or controlled entity; and Review a request for and, if in the State’s interest, grant a waiver to a requested State or State-aided or controlled entity if either of the following conditions apply, in accordance with State Finance and Procurement Article, §14–103(d)(1), Annotated Code of Maryland: The price of the needed supplies and services is at least 10 percent above market rates for similar supplies and services; or The time at which the needed supplies and services would be delivered does not meet the entity's needs. The Pricing and Selection Committee for Preferred Providers shall meet at least annually, at the call of the Secretary of General Services, in order to: Review the status of State procurement under this chapter; Resolve any disputes among the selling entities, including disputes relating to pricing, pricing mechanisms, procurement priorities, and procurement procedures; and Develop recommendations to improve the procedures set forth in this chapter. Each selling entity shall: Annually, or more frequently if required, transmit to the Pricing and Selection Committee for Preferred Providers, in the form and by the date prescribed by the Pricing and Selection Committee for Preferred Providers, a complete listing of services and supplies the selling entity reasonably will be able to provide for State procurement during the 12-month period following scheduled publication of the master list, together with the suggested fair market prices for each service or supply; Consult periodically with the procurement agencies and, as appropriate, with the Secretary of General Services, or designee, to assist in the establishment of reasonable and uniform standards, including those governing quantity, quality, style, design, and delivery of services and supplies pursuant to this chapter; Within 5 working days of receipt of an inquiry from a procurement agency, notify the procurement agency and the Secretary of General Services or designee if the requested service or supply can or cannot be provided in accordance with the procurement agency's specifications within the time specified in the solicitation; Promptly notify the Secretary of General Services or designee if any service or supply included in the master list shall become unavailable; Immediately notify the Secretary of General Services or designee of any unresolved dispute with a procurement agency and request its resolution by the Secretary or designee. Within 90 days after the end of each fiscal year, a preferred provider awarded a contract in accordance with State Finance and Procurement Article, §14–103, Annotated Code of Maryland, shall report to the Department of General Services the information listed in subsections (1) and (2) of this section. For the preceding fiscal year, the report shall state the total number of full–time equivalents for individuals with disabilities who contributed to the work of the contracts. For the preceding fiscal year, Maryland Correctional Enterprises shall report the length of time between each order and delivery of supplies and services. General Purchasing Requirements. Except as provided in §B of this regulation, each procurement agency shall procure available supplies and services from a selling entity in accordance with this chapter. If a selling entity's price for needed services or supplies exceeds the funds available for the procurement, the procurement agency shall attempt to negotiate an acceptable price with the selling entity. To the extent practicable, a State unit or State aided or controlled entity shall include in a maintenance contract that has a component for housekeeping or janitorial services, a requirement that a prime contractor procure janitorial products from Blind Industries and Services of Maryland if the specified products are made, manufactured, remanufactured, or assembled by Blind Industries and Services of Maryland and are available. Exceptions. A procurement agency is not required to obtain a supply or service from a selling entity if: The selling entity is unable to: Furnish the needed supply or service within a reasonable time, or Meet the procurement agency's reasonable specifications for the supply or service; The Pricing and Selection Committee for Preferred Providers deems the selling entity’s price for the supply or service to exceed its fair market price; The cost of procuring a supply or service from a selling entity in accordance with the procurement agency's specifications as approved by the appropriate control authority would exceed the budgetary allowance for the procurement; The procurement is an emergency procurement under COMAR 21.05.06; or The needed supply or service is not included in the master list. Supplies and Services. Regardless of quantity needed, a procurement agency shall procure from a selling entity its requirements for supplies and services included in the master list unless exempted under §B of this regulation. If a supply or service is listed as available from more than one selling entity and no ordering priority is otherwise specified in the master list, the procurement agency shall, subject to §C(3) of this regulation, obtain that supply or service from a selling entity in accordance with the following order of priority: Maryland Correctional Enterprises; Blind Industries and Services of Maryland; The Employment Works Program. A selling entity that is unable to furnish a supply or perform a service within the time required by, or in accordance with the reasonable specifications of, a procurement agency will be deemed to have relinquished its priority under §C(2) of this regulation for that procurement to the selling entity next in order of priority. The procurement agency shall document actions taken under §C(3) of this regulation. Estimates of Purchases. A procurement agency shall notify at least annually the Pricing and Selection Committee for Preferred Providers of the procurement agency’s forecast of recurring purchases during the next fiscal year of those supplies and services included in the master list. Unless bids or offers are needed to establish the fair market price for a supply or service, a procurement agency shall first survey in the order set forth in §C(2) or D(2) of this regulation, as appropriate, the interests of the selling entities in providing the needed supply or service before issuing a solicitation for the procurement. Disputes. A procurement agency shall promptly notify the Secretary of General Services or designee of any dispute with a selling entity concerning supplies or services. In calculating compliance with the certified Minority Business Enterprise goals under COMAR 21.11.03 and for reporting purposes under COMAR 21.11.03.17, a procurement agency may not include in its MBE procurements the annual dollar value of contracts with the following: A preferred provider as defined in State Finance and Procurement Article, §14-101(d), Annotated Code of Maryland; A nonprofit entity in accordance with requirements mandated by State or federal law; or Providers of family and individual support services, community residential services, resource coordination services, behavioral support services, vocational and day services, and respite services, as those terms are defined in regulations adopted by the Maryland Department of Health. The selling entities do not qualify for small business procurement programs under COMAR 21.11.01. Correctional Services Article, §3-515; State Finance and Procurement Article, §§12-101 and 14-101—14-108; Annotated Code of Maryland; Ch. 415, Acts of 2015; Ch. 313, Acts of 2016 Regulation .01B amended effective March 8, 1999 (26:5 Md. R. 394); March 13, 2006 (33:5 Md. R. 523); February 23, 2009 (36:4 Md. R. 355); April 28, 2014 (41:8 Md. R. 473); March 11, 2019 (46:5 Md. R. 310); September 18, 2023 (50:18 Md. R. 800) Regulation .02B amended effective February 23, 2009 (36:4 Md. R. 355) Regulation .02F adopted effective January 2, 1995 (21:26 Md. R. 2192); September 18, 2023 (50:18 Md. R. 800) Regulation .02F amended effective December 25, 2000 (27:25 Md. R. 2284); February 23, 2009 (36:4 Md. R. 355) Regulation .03 amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .04 amended effective March 8, 1999 (26:5 Md. R. 394); March 13, 2006 (33:5 Md. R. 523); March 11, 2019 (46:5 Md. R. 310); September 18, 2023 (50:18 Md. R. 800) Regulation .04C amended effective February 23, 2009 (36:4 Md. R. 355); April 28, 2014 (41:8 Md. R. 473) Regulation .04 Q, R amended effective March 3, 2025 (52:4 Md. R. 221) Regulation .04S adopted effective March 3, 2025 (52:4 Md. R. 221) Regulation .05 amended effective March 8, 1999 (26:5 Md. R. 394); September 18, 2023 (50:18 Md. R. 800) Regulation .06 amended effective March 8, 1999 (26:5 Md. R. 394) Regulation .06A amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .06F adopted effective March 3, 2025 (52:4 Md. R. 221) Regulation .07 amended effective March 8, 1999 (26:5 Md. R. 394); March 13, 2006 (33:5 Md. R. 523) Regulation .07A amended effective April 28, 2014 (41:8 Md. R. 473); June 29, 2020 (47:13 Md. R. 643) Regulation .07B amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .07C amended effective February 23, 2009 (36:4 Md. R. 355); March 11, 2019 (46:5 Md. R. 310) Regulation .07D amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .08 amended effective February 23, 2009 (36:4 Md. R. 355) Regulation .08A, B amended effective March 3, 2025 (52:4 Md. R. 221) Regulation .08C adopted effective March 3, 2025 (52:4 Md. R. 221) Regulation .08B amended effective March 13, 2006 (33:5 Md. R. 523) Regulation .09 amended effective February 23, 2009 (36:4 Md. R. 355) Effective date: January 9, 1989 (15:27 Md. R. 3138) Regulation .01B amended effective August 2, 1993 (20:15 Md. R. 1221) Regulation .02A amended effective August 2, 1993 (20:15 Md. R. 1221) Chapter repealed effective November 20, 1994 (21:23 Md. R. 1937) In this chapter, the following words have the meanings indicated. Terms Defined. “Environmentally preferable product or service” means a product or service that, throughout the full life cycle of the product or service: Is energy efficient, water efficient, biobased, non-ozone depleting, made with recycled content or nontoxic; or Has other attributes recognized as environmentally preferable by the Maryland Green Purchasing Committee. “Environmentally preferable purchasing” means the procurement or acquisition of goods and services that have a lesser or reduced effect on human health and the environment when compared with competing goods or services that serve the same purpose, based on the raw materials, manufacturing, packaging, distribution, use, reuse, operation, maintenance, and disposal of the goods or services. “EPEAT” means the electronic product environmental assessment tool. “Equipment” has the meaning stated in COMAR 21.01.02.01. “Lamp” means the component of a luminaire that produces the light. “Lumen” means a unit of measurement of luminous flux. “Luminaire” means the complete lighting unit, including the lamp or other component that produces light and the assembly that holds the lamp, including an assembly housing, a mounting bracket “Maryland firm” means a business entity that has its principal office or base of operations in the State. “Nonresident firm” means a business entity that has its principal office or base of operations outside this State. “Post consumer material” means only those products generated by businesses or consumers which have served their intended uses, and which have been separated or diverted from waste destined for disposal for the purpose of collection for recycling or reuse. “Product” means goods created by an industrial process or natural means, by hand or with tools, chemical processes, machinery or the like which includes equipment, motor vehicles, and information technology equipment, both hardware and software. “Recycled paper” means a paper product at least 80 percent of the total weight of which consists of the product of a manufacturing process that: Has converted a raw material into a valuable commodity; and Includes a total gross content of post-consumer material of at least 80 percent. “Restricted uplight luminaire” means a luminaire that: Except for a 0.5 percent maximum incidental uplight from reflection off mounting hardware, allows no direct light emission above a horizontal plane through the luminaire’s lowest lightemitting part; and Emits no more than 10 percent of the total direct light emission at or above a vertical angle of 80 degrees. Reciprocal preferences shall be in accordance with COMAR 21.05.01.04. Of the total volume of paper that the Secretary of General Services buys, at least 90 percent shall be recycled paper. In purchasing any paper or paper products as supplies for any using agency pursuant to State Finance and Procurement Article, Title 4, Subtitle 3, Annotated Code of Maryland, the Secretary of General Services, to the fullest extent practicably possible, shall purchase or approve for purchase only such supplies as are manufactured or produced from recycled paper. If recycled paper that meets the definition set forth in Regulation .01B(7) of this chapter is unavailable, then for purposes of complying with the requirements of this chapter, the Department of General Services and other State agencies may purchase recycled paper and paper products that have the highest percentage of post-consumer material that, at minimum, meets EPA guidelines, provided that reasonable levels of competition, cost, availability, and technical performance are maintained. All units of State government shall acquire by purchase or lease, to the greatest extent practicable, the quietest available supplies. Supplies certified by the Administrator of the United States Environmental Protection Agency as “low noise emission products” pursuant to §15 of the Noise Control Act of 1972 shall be considered to meet the intent of this regulation. Whenever the provisions of this chapter cannot be satisfied, the procurement officer shall: Make a determination, subject to the approval of the agency head, that explains or justifies the need to make a procurement which does not satisfy the requirements of this chapter; and Retain that determination in the contract file for at least 3 years. All procurement agencies shall give a preference under this regulation to procuring products and equipment that are mercury-free. If mercury-free products and equipment that meet the agency's product performance requirements are not commercially available, the procurement agency shall give preference under this regulation to products containing the least amount of mercury necessary to meet performance requirements. Procurement solicitations for products that may contain mercury shall give a price preference not exceeding 5 percent to bids or proposals for products that are mercury free or, if the procurement solicitation states, to products containing the least amount of mercury. A procurement officer: Shall specify in any specific procurement solicitation, a price preference not exceeding 5 percent; and May limit competition in any specific procurement solicitation to only mercury-free products. Notice of the requirements under §B of this regulation shall be included in procurement solicitations if mercury is known to be a likely component of the products being procured. The head of a procurement agency or designee may determine that the price preference in §B of this regulation is not in the best interest of the State. If the head of a procurement agency or designee makes this determination, the procurement agency shall provide an alternative preference for products that are mercury free or for products containing the least amount of mercury. In all written and electronic procurements where mercury is a component of the products being offered, bidders and offerors shall certify the mercury content of offered products to be eligible for the preference. The mercury affidavit in COMAR 21.05.08.09 may be used for this certification. “Locally grown food” means food grown in Maryland. State schools and facilities shall give a preference under this regulation to procuring locally grown food. State schools and facilities shall include in procurement solicitations a price preference not exceeding 5 percent to bids or proposals for locally grown food. A procurement officer: Shall specify in any specific procurement solicitation a price preference not exceeding 5 percent; and May limit competition in any specific procurement solicitation to only locally grown foods. A price preference under this regulation cannot be used in conjunction with any other preference established in this chapter. All procurement agencies shall purchase environmentally preferable products and services unless purchasing environmentally preferable products and services would limit or supersede any requirements under any provision of law or result in the purchase of products and services that: Do not perform adequately for the intended use; Exclude adequate competition; or Are not available at a reasonable price in a reasonable period of time. Designations. The Maryland Green Purchasing Committee as established in State Finance and Procurement Article, §14-410, Annotated Code of Maryland, shall designate a single point of contact to advise State agencies, suppliers, and other interested parties on environmentally preferable purchasing issues. The head of each procurement agency shall designate an employee to be responsible for annually reviewing agency specifications currently used by the unit and, to the extent practicable: Adopt the environmentally preferable specifications established by the Maryland Green Purchasing Committee in §C of this regulation; and Revise the unit’s procurement specifications in accordance with State Finance and Procurement Article, §14-410, Annotated Code of Maryland. Environmentally Preferable Purchasing Specifications. Publish and maintain, in electronic format available to the procurement agencies on the Department of General Services website, environmentally preferable specifications for products and services; and Periodically review and update the specifications to ensure the State is purchasing appropriate environmentally preferable products and services. A State or local unit responsible for the maintenance of public lands in the State, to the maximum extent practicable, shall give preference to the use of compost in any land maintenance activity that is publicly funded. If State funds are used to install or replace a permanent outdoor luminaire for lighting on the grounds of any building or facility owned or leased by the State or a unit of the State, procurement specifications shall require that: Design of the luminaire maximizes energy conservation and minimizes light pollution, glare, and light trespass; Illumination produced by the luminaire is the minimum illumination necessary for the intended purpose of the lighting; and For a luminaire with an output of more than 1,800 lumens, the luminaire is a restricted uplight luminaire. Waiver. Except as provided in §B(4) of this regulation, the Secretary of General Services, the Secretary of Transportation, or the Chancellor of the University System of Maryland, or their designees, may waive the requirement of §A(3) of this regulation if they determine that a waiver is necessary for the lighting application. A waiver request shall include: A description of the lighting plan; A description of the efforts made to comply with the requirements of this regulation; and The reason a waiver is necessary. In considering a waiver request, the Secretary of General Services, the Secretary of Transportation, or the Chancellor of the University System of Maryland shall consider design safety, costs, and any other factors determined to be appropriate. A waiver request for a State building or facility owned or leased by an agency other than the Department of General Services, the Department of Transportation, or the University System of Maryland shall require Board of Public Works approval. A waiver request made to the Board of Public Works shall comply with §B(2) of this regulation. Applicability. This regulation does not apply to a luminaire: Located on the grounds of a correctional facility; Required by federal regulation; Required for storm operations activities performed by the Department of Transportation; Required to illuminate the State flag or the flag of the United States; Used for sign illumination; or In a lighting plan where less than 25 percent of the luminaires are to be replaced. In this regulation, “Electronic Product” means a product covered by EPEAT or another comprehensive environmental rating system approved by the Department of Information Technology. When purchasing an electronic product to be used by the State, a procurement agency shall purchase an electronic product that: Is listed and rated silver or gold on the EPEAT registry; or Meets nationally-recognized and consensus-based standards established by a comprehensive environmental rating system approved by the Department of Information Technology. Waiver. The Secretary of Information Technology or designee may waive the requirement upon request by a procurement agency. In this regulation, the following terms have the meanings indicated. Terms Defined. “Certified e-Stewards recycler” means a recycler of electronic products that has successfully completed the e-Stewards certification program created by the Basel Action Network; “Electronic product” means a product acceptable for recycling by: A certified e-Stewards recycler; An R2-certified recycler; or A recycler of electronic products that meets nationally-recognized and consensus-based guidelines, standards, and systems for recycling that are approved by the Department of the Environment in consultation with the Department of General Services. “R2-certified recycler” means a recycler of electronic products that is certified in the R2 practices standards that are maintained by R2 Solutions. Beginning October 1, 2014, when procuring a services contract for electronic-products recycling, a State unit shall award the contract to a recycler of electronic products who: Is R2 or e-Stewards certified; or Meets nationally-recognized and consensus-based guidelines, standards, and systems for recycling that are approved by the Department of the Environment in consultation with the Department of General Services. State Finance and Procurement Article, §§12-101, 14-401—14-403, 14-405, and 14-407,Annotated Code of Maryland; Ch. 593, Acts of 2010; Ch. 314, Acts of 2011 Effective date: January 9, 1989 (15:27 Md. R. 3138) Regulation .01B amended effective June 6, 1994 (21:11 Md. R. 953); October 18, 1999 (26:21 Md. R. 1631); May 26, 2003 (30:10 Md. R. 668); April 11, 2005 (32:7 Md. R. 685); March 5, 2012 (39:4 Md. R. 338 - two actions); May 13, 2013 (40:9 Md. R. 789); April 28, 2014 (41:8 Md. R. 473); March 16, 2015 (42:5 Md. R. 488) Regulation .02 amended effective October 12, 1996 (23:20 Md. R. 1425) Regulation .03 amended effective June 6, 1994 (21:11 Md. R. 953) Regulation .03A amended effective February 7, 2011 (38:3 Md. R. 152) Regulation .05 recodified to Regulation .06 and new Regulation .05 adopted effective June 6, 1994 (21:11 Md. R. 953) Regulation .05 repealed effective March 16, 2015 (42:5 Md. R. 488) Regulation .05A amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751) Regulation .07 adopted effective May 26, 2003 (30:10 Md. R. 668) Regulation .08 adopted effective March 12, 2007 (34:5 Md. R. 562) Regulation .09 adopted effective March 5, 2012 (39:4 Md. R. 338) Regulation .09 amended effective March 16, 2015 (42:5 Md. R. 488) Regulation .10 adopted effective March 5, 2012 (39:4 Md. R. 338) Regulation .11 adopted effective March 5, 2012 (39:4 Md. R. 338) Regulation .12 adopted effective March 5, 2012 (39:4 Md. R. 338) Regulation .12 repealed effective April 28, 2014 (41:8 Md. R. 473) Regulation .13 adopted effective May 13, 2013 (40:9 Md. R. 789) Regulation .13 amended effective April 28, 2014 (41:8 Md. R. 473) Regulation .14 adopted effective April 28, 2014 (41:8 Md. R. 473) Drug and alcohol abuse in the workplace leads to a decrease in productivity, economy, and the maximum benefit to be derived from the purchasing power of the State, thereby decreasing and undermining public confidence in the State procurement system. The State has an interest in assuring the public that recipients of funds under State procurement contracts are not using these monies to maintain or foster, directly or indirectly, workplaces where drug or alcohol abuse occurs. The State is committed to encouraging all non-State entities that do business with the State to make a good faith effort to eliminate unlawful drug use and drug and alcohol abuse from their workplaces. In this chapter, the following words have the meanings indicated. Terms Defined. “Abuse” means the use of: Alcohol when it may impair job performance or endanger the safety of others in the workplace; Any illegal drug; Any over-the-counter drug when the user knows or should know that it may impair job performance or endanger the safety of others in the workplace; or Any prescription drug in a manner or under circumstances that the user knows or should know is inconsistent with its medically prescribed, intended use. “Alcohol” means ethyl alcohol or ethanol. “Conviction” means: A judgment of conviction, whether entered upon a finding of guilty or acceptance of a plea of guilty or nolo contendere, and the imposition of sentence; or The staying of a judgment of conviction and the placing of a defendant on probation after a finding of guilty or the acceptance of a plea of guilty or nolo contendere. “Drug” means: A controlled dangerous substance as defined in Criminal Law Article, §5-101, Annotated Code of Maryland; and Any substance, other than alcohol, caffeine, food, or tobacco, that when taken into the body, may impair one's mental faculties or change one's mood or physical performance. “Drug and alcohol free workplace” means a workplace in compliance with Regulation .03A of this chapter, and in which each employee is expressly prohibited from: Abusing alcohol and drugs; and Unlawfully manufacturing, distributing, dispensing, possessing, or using drugs. “Employee” means each officer, employee, agent, or servant of the recipient who, directly or indirectly, participates in the performance of a procurement contract. “Employee” includes an owner who, directly or indirectly, participates in the performance of a procurement contract. “Individual” means a bidder, offeror, or contractor having not more than one employee, including the bidder, offeror, or contractor. “Recipient” means an individual, a sole proprietorship, a partnership, a corporation, a joint venture, or any other entity that submits a bid or proposal for, or has been awarded, a procurement contract. “Under the influence of” means the use of drugs or alcohol in a manner that may impair job performance or endanger the safety of others in the workplace. “Workplace” means any place at which work is performed in accordance with the terms of a procurement contract. A bidder or offeror, other than an individual, may not be considered a responsible source for a procurement contract unless the bidder or offeror has certified, pursuant to COMAR 21.05.08.07B, that the bidder or offeror will provide a drug and alcohol free workplace by: Maintaining a workplace free of drug and alcohol abuse during the term of the contract; Publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of drugs, and the abuse of drugs or alcohol is prohibited in the contractor's workplace, and specifying the actions that will be taken against employees for violation of these prohibitions; Prohibiting its employees from working under the influence of drugs or alcohol; Refusing to hire or assign to work on the contract anyone whom the contractor knows, or in the exercise of due diligence should know, currently abuses drugs or alcohol and is not actively engaged in a bona fide drug or alcohol abuse assistance or rehabilitation program; Promptly informing the appropriate law enforcement agency of each drug-related crime that occurs in its workplace, if the contractor has observed the violation or otherwise has reliable information that a violation has occurred; Establishing drug and alcohol abuse awareness programs to inform its employees about: The dangers of drug and alcohol abuse in the workplace, The contractor's policy of maintaining a drug and alcohol free workplace, Any available drug or alcohol counseling, rehabilitation, and employee assistance programs, and The penalties that may be imposed upon employees who abuse drugs and alcohol in the workplace; Providing all employees engaged in the performance of a procurement contract with a copy of the statement required by §A(2), above; Notifying employees in the statement required by §A(2), above, that as a condition of continued employment on the procurement contract, the employee shall: Abide by the terms of the statement, and Notify the employer of any criminal drug or alcohol abuse conviction for an offense occurring in the workplace not later than 5 days after a conviction; Notifying the procurement officer within 10 days after receiving notice under §A(8)(b), above, or otherwise receiving actual notice of a conviction; Within 30 days after receiving notice under §A(8)(b), above, or otherwise receiving actual notice of a conviction, imposing one or more of the following sanctions or remedial measures on any employee who is convicted of a drug or alcohol abuse offense occurring in the workplace: Taking appropriate personnel action against an employee, up to and including termination, or Requiring an employee to satisfactorily participate in a bona fide drug or alcohol abuse assistance or rehabilitation program; and Making a good faith effort to maintain a drug and alcohol free workplace through implementation of §A(1)—(10), above. An individual may not be considered a responsible bidder or offeror for a procurement contract unless that individual certifies, pursuant to COMAR 21.05.08.07B, that the individual will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of drugs or the abuse of drugs or alcohol in the performance of the procurement contract. Failure of a bidder or offeror to provide the certification required by Regulation . 03 shall render the bidder or offeror unqualified and ineligible for contract award. Suspension of Contract Payments. After making a determination that adequate evidence to suspect any of the causes in §D, below, exists, the procurement officer, with the approval of the agency head, the appropriate control agency, and the Office of the Attorney General, may suspend payments under the procurement contract. Contract Termination. After making a determination that any of the causes in §D, below, exists, the procurement officer, with the approval of the agency head, the appropriate control agency, and the Office of the Attorney General, may terminate the procurement contract for default under COMAR 21.07.01.11 or 21.07.03.15, as applicable. Suspension and Debarment. Upon initiating action under §A or B, above, the agency head, through the appropriate control agency, shall refer the matter to the Board for suspension and debarment under COMAR 21.08.06. The specific causes for suspension of contract payments, termination of a contract for default, or suspension and debarment are the: Contractor has submitted a false certification in response to a provision regarding a drug and alcohol free workplace under COMAR 21.05.08.07B or 21.07.01.25; Contractor has failed to comply with its certification under COMAR 21.05.08.07B or 21.07.01.25; or Contractor has failed to make a good faith effort to provide a drug and alcohol free workplace, as evidenced by recurring convictions of the contractor's employees for drug and alcohol offenses occurring in the workplace. A determination under this regulation to suspend contract payments, terminate a contract for default, or refer the matter to the Board for suspension and debarment may be waived by the agency head with the approval of the appropriate control agency and the Office of the Attorney General for a particular contract only if and so long as the waiver is necessary to prevent a severe disruption of the agency's operations or services to the detriment of the State or the public. A procurement agency shall be responsible for the implementation of these regulations. The control agencies shall be responsible for the enforcement of these regulations. State Finance and Procurement Article, §§11-201 and 12-101, Annotated Code of Maryland Effective date: October 1, 1990 (17:19 Md. R. 2322) In this chapter, the following terms have the meanings indicated. Terms Defined. “Blind person” means a person who, after examination by a physician skilled in diseases of the eye or by an optometrist, has been determined to have not more than 20/200 central visual acuity in the better eye with correcting lenses or an equally disabling loss of the visual fields to the extent that the field in the better eye is constricted to an angle of 20° or less. “Cost of Goods Sold” means the inventory cost of the products sold. “Department” means the Department of General Services. “Division” means the Division of Rehabilitation Services of the State Department of Education. “Licensed blind vendor” means a blind person who has been licensed by the Division to operate a vending facility on federal, State, or other property. “Occupant” means any State agency, board, commission, institution, or commercial concession which occupies space within property controlled by the Department. “Program” means the Maryland Vending Program for the Blind. “Property controlled by the Department” means any buildings, land, or other real property owned or leased by the State which is managed by Department personnel. “Reasonable services and maintenance costs in accordance with customary business practices” means personnel and repair costs, including equipment and transportation costs, taxes, overhead and administration costs and commercial vendor profits. “Receipts” means payments made to the program by a commercial vending company which operates services and maintains vending machines on property controlled by the property managing agency. “Vending facility” means vending machines, cafeterias, snack bars, and other concession stands for the sale of foods, beverages, newspapers, periodicals, confections, tobacco products, and other merchandise including the sale or exchange of chances for any lottery authorized by State law and conducted by an agency of the State. “Vending machine” means a currency-operated machine that dispenses products or services. “Vending machine income” means: receipts, other than those of a licensed blind vendor, from vending machine operations on property controlled by the Department after deducting costs of goods sold, including reasonable service and maintenance costs in accordance with customary business practices. The Department shall cooperate with the Division to establish, whenever possible, vending facilities on property controlled by the Department. The Program has priority to operate a vending facility on property controlled by the Department, according to the following: The Department shall give the Program the first opportunity to operate: A new vending facility on property controlled by the Department, on terms that are equal to or more favorable than the Department would offer to another operator; An existing Program vending facility on property controlled by the Department on terms that are equal to or more favorable than the existing terms; The Department may offer the opportunity to others only if the Program declines to accept the first opportunity to operate a vending facility. Survey of Property. The Program, in cooperation with the Department and occupants, shall survey all property controlled by the Department and recommend to the Department what vending facilities are required to adequately serve the occupants at each location, according to the following: The Department shall provide to the Division an inventory of existing property controlled by the Department by July 1 of each year; As early as possible, the Department shall notify the Division in writing of plans to renovate existing property, relocate, purchase, build, or otherwise acquire management of property to be controlled by the Department; Factors to be considered by the Program and the Department include, but are not limited to: The site's accessibility; Available space; Available funding; and Other factors relevant to a determination of the suitability of a location. Determination of Need. The Program shall make a recommendation to the Department and, where appropriate, the occupant, within 30 days after receipt of notification regarding the need to establish, expand, relocate, or otherwise alter vending facilities at each site. The Department, after consultation with the occupant where appropriate, shall make the final decision regarding the location of all vending facilities on property controlled by the Department. The Department and the Division shall enter into written agreements authorizing the establishment of each vending facility and setting forth the terms for operation and maintenance of each vending facility including, but not limited to, matters such as overhead, maintenance, utilities, equipment repair, and replacement. The Program shall manage all vending facilities on property controlled by the Department in accordance with the standards established by the written agreements and by COMAR 13A.11.04. The Program may contract with third parties to provide vending machine services on property controlled by the Department. Vending machine income resulting from the operation of vending machines on property controlled by the Department shall be paid to the Division. The Division shall distribute the vending machine income to the licensed blind vendor operating a vending facility where the vending machine income is generated or, if there is no person managing the vending facility, to the Program. Education Article, §§21-301—21-303; State Finance and Procurement Article, §14-109; Annotated Code of Maryland Effective date: June 7, 1993 (20:11 Md. R. 917) Regulation .01B amended effective January 2, 2017 (43:26 Md. R. 1449) Regulation .02C repealed effective January 2, 2017 (43:26 Md. R. 1449) In this chapter, the following terms have the meanings indicated. Terms Defined. “Employee” means an individual who satisfies the criteria of the employer-employee relationship test which examines: If the employer has the power to select and hire the employee; If the employer pays the employee wages; If the employer has the power to discharge the employee; If the employer has the power to control the employee's conduct; and If the work is part of the regular business of the employer. “Employer” means: A contractor who: Has a State contract for services valued at $500,000 or more; or Employs more than 10 employees and has a State contract for services valued at greater than $100,000 but less than $500,000; or A subcontractor who: Performs work for a contractor who is an employer subject to the Living Wage Law on a State contract for services that is valued at $500,000 or more; or Employs more than 10 employees and performs work for a contractor who is an employer subject to the Living Wage Law on a State contract for services that is valued at $100,000 or more but less than $500,000. Services. “Services” means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance. “Services” includes maintenance as defined in COMAR 21.01.02.01B(53) but does not include construction work or the purchase of goods. “Tier 1 Area” means Montgomery County, Prince George's County, Howard County, Anne Arundel County, Baltimore County, and Baltimore City. “Tier 2 Area” means any county in the State not included in the Tier 1 Area. The Living Wage applies to an employee who: Is 18 years old or older or who will turn 18 during the duration of a State contract for services subject to the Living Wage Law; and Spends at least one-half of the employee's time during any work week on a State contract for services subject to the Living Wage Law. The Living Wage does not apply to an employee who works less than 13 consecutive weeks and full-time on a contract subject to the Living Wage Law. An employer who reduces the wages paid to an employee based on the employer's share of the health insurance premium, as provided in §18-103(c), State Finance and Procurement Article, Annotated Code of Maryland, may not lower an employee's wage rate below the minimum wage as set in Labor and Employment Article, §3-413, Annotated Code of Maryland. An employer who reduces the wages paid to an employee based on the employer's share of the health insurance premium shall comply with the record reporting requirements of Regulation .05 of this chapter. An employer may reduce the wage rates paid under State Finance and Procurement Article, §18-103(a), Annotated Code of Maryland, by not more than 50 cents of the hourly cost of the employer's contribution to an employee's deferred compensation plan. An employer who reduces the wages paid to an employee based on the employer's contribution to an employee's deferred compensation plan may not lower the employee's wage rate below the minimum wage as set in Labor and Employment Article, §3-413, Annotated Code of Maryland. An employer who reduces an employee's wage rate under §A of this regulation shall comply with the record reporting requirements of Regulation .05 of this chapter. On the day that work on the contract begins, an employer to a State contract for services subject to the Living Wage Law shall file with the Commissioner of Labor and Industry the following: If the employer reduces the wages paid to its employees covered by the Living Wage based upon the employer's share of the health insurance premium: Documentation of the employer's cost and proof of payment for each employee under the employer's health insurance plan; The methodology that the employer uses to determine the hourly amount of health insurance deduction for each employee; and Signature cards or other documentation reflecting that the employee has authorized a deduction for health insurance; If the employer reduces the wages paid to its employees based upon the employer's contribution to an employee deferred compensation plan: The name of the employee deferred compensation plan; Proof that the deductions from the wages paid to an employee for the employee deferred compensation plan are being deposited in a bona fide deferred compensation plan; and Signature cards or other documentation reflecting that the employee has authorized a deduction for the employee deferred compensation plan; A list of the three most commonly used languages at the worksite; A copy of the Commissioner's “Contractor and Employee Information Form” and the “Subcontractor and Employee Information Form”; and Any other pertinent information that the Commissioner considers necessary. An employer shall post the Commissioner of Labor and Industry's “Notice to Employees—Wage Requirements” on the day that work on the contract begins. Within 10 days after the posting of the notice, an employer shall submit to the Commissioner of Labor and Industry a copy of the Commissioner's “Certification of Posting the Wage Requirement Notice”. Subject to the provisions of §G of this regulation, within 14 days after the end of each payroll period, an employer shall submit to the Commissioner of Labor and Industry a complete copy of the following: The employer's payroll records for those employees who are covered under the living wage law pursuant to Regulation .02 of this chapter; and Each subcontractor's payroll records for the employees who are covered under the living wage law pursuant to Regulation .02 of this chapter. Each payroll record that is submitted pursuant to §C of this regulation shall list the following: The name, address, and telephone number of the contractor or the subcontractor; The name, location, and project number of the job; and Each employee's: Name and at least the last four digits of the employee's Social Security number; Current address; Daily and straight time and any time over 40 hours in one work week; Total straight time and overtime hours for the payroll period; Rate of pay; Amount of deduction for health benefits, if any; Amount of deduction for the employee deferred compensation plan, if any; and Gross wages. An employer submitting payroll records pursuant to §C of this regulation shall submit a statement that is signed by the contractor that indicates the following: The payroll records are correct; and The wage rate paid is not less than that required in State Finance and Procurement Article, §18-103, Annotated Code of Maryland. The Commissioner may request that an employer periodically submit data, in a form acceptable to the Commissioner, including but not limited to payroll records, for those employees performing work in connection with a State contract for services. Waivers. Request for a Waiver. An employer may submit to the Commissioner of Labor and Industry a written request for a waiver of the reporting requirements of §§C and F of this regulation. The request for the waiver shall state the reasons why the employer seeks a waiver. The Commissioner may, for good cause shown, waive the reporting requirements of §§C and F of this regulation. If the Commissioner waives the reporting requirements under this section, the Commissioner retains the right to: Audit the employer at any time; Reinstate the reporting requirements at any time; Change the interval for the submission of payroll records; or Do all of the actions in §G(2)(a)—(c) of this regulation. If the Commissioner waives the reporting requirements under this section, the employer is required to post a copy of the waiver notice in the same location as the employer posts the notice to employees of wage requirements. An employer shall retain the following records at the worksite or at a readily accessible location for 3 years: Payroll records covering work performed at the worksite; and Copies of health insurance plans and employee deferred compensation plans. If services under a contract subject to State Finance and Procurement Article, Title 18, Annotated Code of Maryland, are capable of being performed in both Tier 1 and Tier 2, the head of the unit responsible for a State contract pursuant to State Finance and Procurement Article, §18-102(d), Annotated Code of Maryland, shall assign the tier based upon where the majority of the services are performed. If the employees who perform the services are not located in the State, the head of the unit responsible for a State contract pursuant to State Finance and Procurement Article, §18-102(d), Annotated Code of Maryland, shall assign the tier based upon where the recipients of the services are located. An employer subject to State Finance and Procurement Article, Title 18, Annotated Code of Maryland, shall comply with the rate requirements during the initial term of the contract and all subsequent renewal periods including any increases in the wage rate, if adjusted, automatically upon the effective date of the revised wage rate. An employer may not split or subdivide a contract, pay an employee through a third party, or treat an employee as a subcontractor or independent contractor, or assign work to employees to avoid the imposition of any of the requirements of State Finance and Procurement Article, Title 18, Annotated Code of Maryland, or this chapter. This regulation supplements the requirements of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. The Commissioner of Labor and Industry may delegate the authority to conduct the hearing to the Office of Administrative Hearings. The administrative law judge may: Administer oaths and affirmations; Rule on procedural matters and offers of proof and receive relevant evidence; Regulate the course of the hearing and the conduct of the parties and their counsel; Examine any witness; Compel the production of records, books, papers, and other evidence; and Take any other appropriate action authorized by statute or regulation. Hearing Procedure. The administrative law judge shall: Call the title of the case; Explain briefly the purpose and nature of the hearing; Recite any charges, complaints, or other matters involved; and Administer the oath to all persons who are summoned or who intend to testify. Counsel or any party may be heard on any preliminary matter, exception, or motion, and any stipulation entered into by the parties shall be received. The following exhibits shall be introduced: If the administrative law judge is the Commissioner of Labor and Industry's designee, a copy of the letter designating the administrative law judge to preside at the hearing; A copy of the order for hearing sent to each interested party entitled to receive notice pursuant to State Finance and Procurement Article, §18-107, Annotated Code of Maryland; and Information obtained by the Commissioner of Labor and Industry as a result of any investigation pursuant to State Finance and Procurement Article, §18-107, Annotated Code of Maryland. The assistant attorney general shall proceed first and shall present evidence of any investigation made by the Commissioner of Labor and Industry. Subject to applicable statutes and rules governing the practice and procedure, each party or counsel representing a party may: Call witnesses; Offer evidence, including rebuttal evidence; Cross-examine any witness that another party or the agency calls; and Present summation and argument. Determination of Administrative Law Judge. Within 7 days after the conclusion of the hearing, the administrative law judge shall issue a written proposed determination, which includes proposed findings of fact and conclusions of law, and the amount of restitution and liquidated damages to be assessed under State Finance and Procurement Article, §18-108, Annotated Code of Maryland. The proposed determination or an accompanying letter shall notify the parties that they may file written exceptions with, and present arguments to, the Commissioner of Labor and Industry. The administrative law judge shall serve, personally or by mail, a copy of the proposed determination on each party present or represented at the hearing. The proposed determination of the administrative law judge shall become the final order of the Commissioner of Labor and Industry unless exceptions are filed or the Commissioner orders review. Review. Within 5 days from the postmark date of the proposed determination: The Commissioner of Labor and Industry may order review; or A party adversely affected by the proposed determination may request review in writing to the Commissioner. A request for review shall contain a concise statement identifying each portion of the administrative law judge's proposed determination for which a review is requested. A request for review shall be mailed to all other parties to the proceeding. After review of the proceedings with or without a hearing, the Commissioner shall: Issue an order based on findings of fact; Affirm, modify, or vacate the proposed determination, or proposed penalty, or direct other appropriate relief; and Mail copies of the order to all affected parties. A party aggrieved by a final order of the Commissioner of Labor and Industry may obtain judicial review by filing a written petition with the appropriate circuit court within 30 days of issuance of the final order. State Finance and Procurement Article, Title 18, Annotated Code of Maryland Effective date: Regulations .01—.10 adopted as an emergency provision effective October 1, 2007 (34:22 Md. R. 1975); adopted permanently effective February 25, 2008 (35:4 Md. R. 515) In this chapter, the following terms have the meanings indicated. Terms Defined. “Established locality” means the nearest locality in Maryland which most closely approximates the site of the public work in terms of population, degree of industrialization, and skill of the work force. “Overtime” means: Work performed in excess of 10 hours per calendar day, or work performed on Sundays and legal holidays, including but not limited to: New Year's Day, January 1; Memorial Day, as observed by either the State or the federal government; Independence Day, July 4th; Labor Day, first Monday in September; Thanksgiving Day, fourth Thursday in November; and Christmas Day, December 25th. Payment of overtime to employees for other legal holidays is not prohibited, whether or not the employees are covered by collective bargaining agreements. “Stop work order” means an order issued by the Commissioner to a contractor or subcontractor that requires the contractor or the subcontractor to stop that contractor’s or that subcontractor’s work at the location identified in the order. “Weighted average rate” for a classification means the rate obtained by adding together the hourly rate paid to each worker in a classification and dividing the total by the number of workers in the classification. Within 14 days after the end of each payroll period, a contractor shall submit electronically to the Commissioner of Labor and Industry in a format approved by the Commissioner of Labor and Industry a complete copy of: The contractor's payroll records; and Each subcontractor's payroll records. The Commissioner of Labor and Industry shall be responsible for providing the contractor’s or subcontractor’s payroll records to the contracting public body, as appropriate. Form. Payroll records shall: Be submitted on the U.S. Department of Labor's Wage and Hour and Public Contracts Division Payroll Form WH-347, or its equivalent; Include either the: Certificate described in State Finance and Procurement Article, §17-220, Annotated Code of Maryland; or Compliance certificate in Payroll Form WH-347, fully completed and executed; and Be numbered serially starting with payroll number one. Contents. Each payroll record shall: Contain only information relevant to the public work project under construction; List: The name, address, and telephone number of the contractor or the subcontractor; The name, location, and project number of the job; and Each employee's: Name and social security number; Current address, unless previously reported; Specific work classification; Daily straight time and overtime hours; Total straight time and overtime hours for the payroll period; Rate of pay; Total amount of fringe benefits and the amount of the total that is allocated toward apprenticeship; and Gross wages; Include for each apprentice, proof that the apprentice is in an apprenticeship program: Registered with the Maryland Apprenticeship and Training Council of the Maryland Department of Labor; and Approved by the Bureau of Apprenticeship and Training of the U.S. Department of Labor. Payroll records are available for inspection during regular business hours at the Division of Labor and Industry. Record Keeping. The Commissioner shall keep records, for 3 years, of: Restitution made to underpaid employees; and Liquidated damages assessed in accordance with State Finance and Procurement Article, §§17-201—17-226, Annotated Code of Maryland. The Commissioner may not close an investigative file until confirmation of requisite payment, if any, is received. The Commissioner shall conduct ongoing surveys to obtain and compile wage rate information. The Commissioner shall encourage contractors, contractors' associations, labor organizations, public officials, and other interested parties to submit voluntarily data detailing wage rates paid to workers on various types of construction in all localities. The following apply: Rates are determined for various types of construction, such as buildings, bridges, dams, highways, tunnels, sewers, powerlines, railways, airport buildings and runways, wharves, levees, canals, dredging, landing clearing, and excavating; A submission shall state the: Locality; Wage rate or rates paid to a particular trade or craft in that locality; and Type of construction for which the rate or rates are paid. The following information shall be considered in making a wage rate determination: Payrolls and certified statements setting forth wage rates paid on other projects, and including the: Names and addresses of the contractors and subcontractors; Nature of the project; Dates, location, and approximate cost of the project; Number of workers employed in each classification on the project; and Wage rates and fringe benefits paid to the workers in each classification; Signed collective bargaining agreements that include, upon request by the Commissioner, a certificate from the parties describing the agreement's scope and application; and Public construction wage rates previously determined by federal and local officials pursuant to prevailing wage legislation. Fringe Benefits. For the purposes of prevailing wage determinations, wage rates include bona fide fringe benefits when the payment of fringe benefits is a prevailing practice in the particular locality. To determine whether payment of fringe benefits is a prevailing practice in the particular locality, the Commissioner shall consider: The wage rate paid to 50 percent or more of the employees in a given construction classification in the locality used to determine the basic hourly rate; If fewer than 50 percent are paid at the same rate, the wage rate paid to 40 percent or more of the employees in a given construction classification in the locality used to determine the basic hourly rate, or if fewer than 40 percent are paid at the same wage rate, the weighted average rate for employees in a given construction classification in the locality used to determine the basic hourly rate; The subject matter of signed collective bargaining agreements, if any. Scope of Consideration. When a determination is made pursuant to State Finance and Procurement Article, §17-208(a)(1), Annotated Code of Maryland: Only information concerning projects currently under construction or completed within 6 months before the date of the request for the determination shall be considered. Only payrolls for labor used within 12 months before the date of the request for the determination shall be considered. If there was no construction of a similar character in the locality for the year preceding the date of the request for determination, wage rates applicable to the nearest established locality shall be considered. When a determination is made pursuant to State Finance and Procurement Article, §17-209, Annotated Code of Maryland, the Commissioner shall consider: Only information concerning projects currently under construction or completed within 6 months before the date of the 60 days notice given before making the determination; Only payrolls for labor used within 12 months before the date of the 60 days notice given before making the determination; If there was no construction of a similar character in the locality for the year preceding the date of the 60 days notice given before making the determination, wage rates applicable to the nearest established locality. Supplemental Information. If sufficient data is not available to make a determination for those trades and crafts required for the proposed project, a field survey may be conducted in the locality of the proposed project in order to obtain sufficient information upon which to make a wage rate determination. If a field survey is impracticable and available information is inadequate, the Commissioner may hold a hearing to obtain information and data upon which to make a wage rate determination for proposed project. Supplemental Wage Rate Determination. If a wage rate is not issued for a particular classification or subclassification of workers in a trade or craft, the contractor and subcontractor shall submit, before beginning work, a written statement to the Commissioner listing: The proposed rate of pay and at least three recent jobs of the submitting contractor or subcontractor in the locality of the proposed public work on which the workers in the particular classification or subclassification were paid the proposed rate of pay or less; or If there is not a substantial number of workers engaged in construction of a similar character in the locality, the Commissioner may consider relevant wage data from at least three recent jobs of the submitting contractor or subcontractor in the nearest established locality. The wage data and proposed rate of pay are subject to the approval of the Commissioner. Validity of Wage Rate Determinations. A wage determination initially issued under State Finance and Procurement Article, §17-208(a)(1), Annotated Code of Maryland, for a particular public work in a given locality is effective for 1 year from the date of the determination. If a wage determination will expire before the call for contract bids is issued, the contracting public body shall request a new wage determination not less than 60 days before the call for bids. The Commissioner shall correct any wage determination included in a contract if the wage determination contains clerical errors. If the amount of bona fide fringe benefits paid by an employer exceeds the bona fide fringe benefits rate in a prevailing wage determination, an employer may credit, up to 20 percent of the basic rate, the amount of excess bona fide fringe benefits against the basic wage rate. If the employer does not have a bona fide fringe benefit amount equal to or more than the prevailing wage bona fide fringe benefit amount, the employer shall pay the difference to the employee in basic wages. If a credit of bona fide fringe benefits is applied pursuant to this subsection, the total wages shall equal or exceed the prevailing wage rate. An apprentice shall be paid the full amount of the bona fide fringe benefit in the prevailing wage determination for the applicable classification unless the apprentice’s apprenticeship program as approved by the Maryland Apprenticeship and Training Council provides for the payment of a percentage of the bona fide fringe benefit amount. This regulation applies to the following mechanical systems service contracts: Valued at more than $2,500; Procured by a public body as defined in State Finance and Procurement Article, §17-201(j), Annotated Code of Maryland; and Covering a mechanical system installed as part of a building or public work constructed under the Prevailing Wage Law for a contract bid on or after October 1, 2022. A contractor performing work on a mechanical systems service contract shall submit certified payroll records pursuant to Regulation .02 of this chapter only for the weeks that work was performed on the service contract. This regulation supplements the requirements of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 09.01.02 and 09.01.03. The hearing officer shall be the Commissioner of Labor and Industry, or the Commissioner's designee. The hearing officer may: Administer oaths and affirmations; Rule on procedural matters and offers of proof and receive relevant evidence; Regulate the course of the hearing and the conduct of the parties and their counsel; Examine any witness; Issue subpoenas; and Take any other appropriate action authorized by statute or regulation. Hearing Procedure. The hearing officer shall: Call the title of the case; Explain briefly the purpose and nature of the hearing; Recite any charges, complaints, or other matters involved; and Administer the oath to all persons who are summoned or who intend to testify. Counsel or any party may be heard on any preliminary matter, exception, or motion, and any stipulation entered into by the parties shall be received. The following exhibits shall be introduced: If the hearing officer is the Commissioner's designee, a copy of the letter designating the hearing officer to preside at the hearing; If the hearing involves a petition for review: A copy of the verified petition filed with the Commissioner; A copy of the notice of hearing sent to each party entitled to receive notice pursuant to State Finance and Procurement Article §17-211, Annotated Code of Maryland A copy of the protested prevailing wage determination; Information considered in making the wage rate determination; Wage data or collective bargaining agreements submitted by the petitioner that were not produced prior to the original wage rate determination, upon a showing of good cause why such evidence was not produced in a timely manner; Recent wage data or wage rates from collective bargaining agreements submitted by the petitioner that became available or effective after the date of the original wage rate determination and before the date of the hearing; and Information obtained by the Commissioner as a result of subsequent investigations pursuant to State Finance and Procurement Article, §17-211, Annotated Code of Maryland; If the hearing concerns the applicability of the Prevailing Wage Subtitle, State Finance and Procurement Article, Annotated Code of Maryland, to a project: A copy of the request for determination filed with the Commissioner; A copy of the notice of hearing sent to the petitioner, the contracting public body, the recognized collective bargaining agent for the particular classification of workers involved, and each person entitled to receive notice pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland; and Information obtained by the Commissioner as a result of a subsequent investigation pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland; If the hearing involves an alleged violation of the Prevailing Wage Subtitle, State Finance and Procurement Article, §§17-201—17-226, Annotated Code of Maryland: A copy of the notice of hearing sent to the contracting public body, the recognized collective bargaining agent for the particular workers involved, and to each person entitled to notice pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland, and Information obtained by the Commissioner as a result of the subsequent investigation pursuant to State Finance and Procurement Article, §17-221, Annotated Code of Maryland. The Assistant Attorney General shall proceed first and shall present evidence of any investigation made by the Commissioner of Labor and Industry. Subject to applicable statutes and rules governing the practice of law, each party or counsel representing a party may: Call witnesses; Offer evidence, including rebuttal evidence; Cross-examine any witness that another party or the agency calls; and Present summation and argument. Determination of Hearing Officer. The hearing officer shall issue a written determination, which includes proposed findings of fact and conclusions of law, and a proposed order making disposition of the proceedings. The hearing officer shall serve a copy of the determination on each party present or represented at the hearing. Unless exceptions to a hearing officer's proposed determination are filed with the Commissioner within 10 working days from the date of the determination, the decision of the hearing officer shall become the final order of the Commissioner. A party aggrieved by a final order of the Commissioner may obtain judicial review by filing a written petition with the appropriate circuit court within 30 days of issuance of final order. If the Commissioner receives a complaint that an employee under a public work contract was paid less than the prevailing wage rate for that employee’s classification, the Commissioner shall investigate the complaint and attempt to resolve the complaint informally within 90 days of receipt of the complaint. If the Commissioner receives a complaint that an employee under a public work contract was paid less than the prevailing wage rate for that employee’s classification, the Commissioner shall investigate the complaint and attempt to resolve the complaint informally within 90 days of receipt of the complaint. State Finance and Procurement Article, §§17-202, 17-204(a), and 17-221, Annotated Code of Maryland Effective date: July 1, 1981 (8:13 Md. R. II-5) Regulations .01—.06 repealed and new Regulations .01—.04 adopted effective October 17, 1988 (15:21 Md. R. 2469) Regulation .01B amended effective July 12, 1999 (26:14 Md. R. 1083) Regulation .02C amended effective February 9, 1998 (25:3 Md. R. 146) Regulation .03E amended effective January 23, 1989 (16:1 Md. R. 72) Regulation .05 adopted effective April 18, 2011 (38:31 Md. R. 509) Chapter revised effective June 25, 2012 (39:12 Md. R. 745) Regulation .02 amended effective November 26, 2012 (39:23 Md. R. 1532) Regulation .05D amended effective September 3, 2012 (39:17 Md. R. 1149) Chapter revised effective October 14, 2013 (40:20 Md. R. 1653) Regulation .01B amended effective May 15, 2023 (50:9 Md. R. 379) Chapter revised effective May 15, 2023 (50:9 Md. R. 379) Chapter revised effective January 22, 2024 (51:1 Md. R. 16) In this chapter, the following terms have the meanings indicated. Terms Defined. “Approved apprenticeship program” means an apprenticeship program or an organization with an apprenticeship program which has been registered with, and approved by, the Maryland Apprenticeship and Training Council or the United States Department of Labor. “Commissioner” means the Commissioner of Labor and Industry. “Covered craft” means a classification of workers listed in the prevailing wage determination applicable to a prevailing wage project. “Fund” means the State Apprenticeship Training Fund. If a contractor participates in an apprenticeship training program for each covered craft, the contractor satisfies their obligation under State Finance and Procurement Article, §17-603(a)(1), Annotated Code of Maryland, by making contributions of at least 25 cents per person per hour. If a subcontractor participates in an apprenticeship training program for each covered craft, the subcontractor satisfies their obligation under State Finance and Procurement Article, §17-604(a)(1), Annotated Code of Maryland, by making contributions of at least 25 cents per person per hour. Contractors and subcontractors that do not participate in an apprenticeship training program shall pay at least 25 cents per person per hour for each employee in each covered craft on the prevailing wage project to a registered apprenticeship program, an organization that has a registered apprenticeship program, or the Fund. Contractors and subcontractors who make contributions to the Fund shall do so on a monthly basis. Contractors and subcontractors who make contributions to a registered apprenticeship program or an organization that has a registered apprenticeship program shall make contributions on a monthly basis or consistent with a collective bargaining agreement or other contractual arrangement. If there is a prevailing wage determination that includes a fringe benefit contribution for apprenticeship that exceeds 25 cents per hour, a contractor or subcontractor that makes contributions to the Fund shall pay to the employee wages in the amount that the fringe benefit contribution for apprenticeship exceeds 25 cents per hour. Contractors performing work on a prevailing wage project shall complete the registration process at the Department’s website. Subcontractors who are performing work valued at $100,000 or more on a prevailing wage project shall complete the registration process at the Department’s website. Prior to the commencement of work, a registered contractor or registered subcontractor shall log onto the Department’s website and complete the required project log information including: The prevailing wage project number; Contract value; Identification of subcontractors to perform work on the project and subcontract value amount; Designation of the program or Fund where the contractor or subcontractor will make contributions; and Any other information that the Commissioner requires. Contractors and subcontractors who hire subcontractors performing work valued at $100,000 or more on a public work contract subject to the Maryland Prevailing Wage Law shall provide the subcontractors with written notice of the following requirements: Subcontractors shall complete the registration process at the Division of Labor and Industry’s website at https://www.dllr.state.md.us/prevwage; Prior to the commencement of work, a subcontractor shall log onto the Department’s website and complete the required project log information including: The prevailing wage project number; Contract value; Identification of all subcontractors to perform work on the project and subcontract value amount; Designation of the program or Fund where the subcontractor will make contributions; and Any other information that the Commissioner requires; and Subcontractors performing work on a prevailing wage project valued at $100,000 or more are required to make payments to approved apprenticeship programs or to the Fund for each employee employed in classifications listed on the prevailing wage determination. Contractors and subcontractors shall retain a copy of the written notice required in §A of this regulation that was provided to covered subcontractors for inspection and review by the Commissioner for 3 years after the completion of their work on a public work project. Contractors and subcontractors are required to: Indicate on their prevailing wage payroll record their contributions under State Finance and Procurement Article, §17-603 or 17-604, Annotated Code of Maryland; and Certify that the contributions were received by an approved apprenticeship program or the Fund. Contractors and subcontractors shall log onto the Department’s website and indicate each approved apprenticeship program or the Fund to which it will make contributions. If a contractor or subcontractor intends to change a designation, it shall log onto the Department’s website to indicate the change in designation 30 days prior to that change. Upon notice from the Division of Labor and Industry that the approved apprenticeship program has been designated for contributions by a contractor or subcontractor, an approved apprenticeship program shall register on the Department’s website. An approved apprenticeship program shall complete the requested information on contributions received from contractors and subcontractors for each covered craft for each prevailing wage project at the Department's website on or before the last day of the month immediately following each calendar quarter. Certify that all funds received are used solely for the purpose of improving or expanding apprenticeship training in the State. The Commissioner may require an independent audit by a certified public accountant of an approved apprenticeship program to verify that contributions received are used consistent with this subtitle. The Commissioner may investigate whether State Finance and Procurement Article, Title 17, Subtitle 6, Annotated Code of Maryland, has been violated: On the Commissioner’s own initiative; On receipt of a written complaint; or On referral from another State agency. The Commissioner may require a contractor, subcontractor, or an approved apprenticeship program to produce records as part of its investigation. The Commissioner may enter a place of business to: Interview individuals; or Review and copy records. If after an investigation, the Commissioner determines that there is a violation of State Finance and Procurement Article, Title 17, Subtitle 6, Annotated Code of Maryland, or a regulation adopted to carry out the title, the Commissioner shall issue an administrative charge that shall: Describe in detail the nature of the alleged violation; Cite the provision of law or regulation that is alleged to have been violated; and State the penalty, if any. Within a reasonable amount of time after the issuance of the administrative charge, the Commissioner shall send a copy of the administrative charge to the alleged violator by certified mail with notice of the opportunity to request a hearing. Within 15 days after the alleged violator receives the administrative charge, the employer may submit a written request for a hearing on the administrative charge and proposed penalty. If a hearing is not requested within 15 days, the administrative charge, including any penalties, shall become a final order of the Commissioner. If there is a request for a hearing, the Commissioner may delegate the hearing to the Office of Administrative Hearings in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. A proposed decision of an administrative law judge shall become a final order of the Commissioner unless, within 15 days of the issuance of the proposed decision: The Commissioner orders review of the proposed decision; or The alleged violator submits to the Commissioner a written request for review of the proposed decision. After review of the proposed decision under §I of this regulation, with or without a hearing on the record, the Commissioner shall issue an order that affirms, modifies, or vacates the proposed decision State Finance and Procurement Article, §§17-603—17-606, Annotated Code of Maryland Effective date: July 1, 2013 (40:8 Md. R. 724) In this chapter, the following terms have the meanings indicated. Terms Defined. “Covered contract” has the meaning stated in State Finance and Procurement Article, §17-6A-01(c), Annotated Code of Maryland. “Department” means the Maryland Department of Labor. “Fund” has the meaning set forth in State Finance and Procurement Article, §17-6A-01(e), Annotated Code of Maryland. “Registered apprenticeship program” means an apprenticeship program which has been registered with, and approved by, the Maryland Apprenticeship and Training Council or the United States Department of Labor and is operating within the State of Maryland. “Secretary” means the Secretary of the Maryland Department of Labor. Each contractor or subcontractor awarded a covered contract defined in Regulation .01 of this chapter shall: Both: Be affiliated with a registered apprenticeship program; and Use apprentices from registered apprenticeship programs for each craft or trade in which the contractor or subcontractor employs individuals to complete the contract; or Either: Make payments to the Fund; or Make payments to a registered apprenticeship program. This title is not applicable to a contractor or subcontractor if there are no registered apprenticeship programs for the craft or trade in which the contractor or subcontractor employs one or more individuals to complete the covered contract. This title is not applicable to any capital construction projects that commenced, in whole or in part, prior to the effective date of these regulations. Contractors and subcontractors that elect to make payments as described in Regulation .02 of this chapter shall pay 25 cents per individual per hour, for each employee who is employed to complete the contract, to: A registered apprenticeship program; or The Fund. Payments described in §A of this regulation shall be made on a monthly basis. Contractors performing work on a covered contract shall complete the registration process at the Department’s website. Prior to the commencement of work, a registered contractor shall log onto Department’s website and complete the required project log information, including, but not limited to, the following: Identification of the capital project or grant; Contract value; Identification of subcontractors with contracts valued at $500,000 or more to perform work on the project and subcontract value amount; Identification of the affiliated registered apprenticeship program; Certification that the contractor is employing registered apprentices from the registered apprenticeship program to complete the contract; and Any other information that the Secretary requires. In the event the contractor is not affiliated with a registered apprenticeship program and is not able to comply with the certification requirement set forth in §B(5) of this regulation, the contractor shall designate the entity, either a registered apprenticeship program or the Fund, to which the contractor will make contributions, estimate the number of employees per craft and trade for which there is a registered apprenticeship program, and estimate the number of hours they will be employed to complete the contract. Subcontractors shall comply with the same registration requirements as set forth in this regulation. Contractors who hire subcontractors performing work valued at $500,000 or more on a covered contract, shall provide the subcontractors with written notice of the following requirements: Subcontractors performing work valued at $500,000 or more on a covered contract shall complete the registration process on the Department’s website; and Prior to the commencement of work, a subcontractor shall log onto the Department’s website and complete the required project log information including: Identification of the capital project or grant; Contract value; Identification of subcontractors with contracts valued at $500,000 or more to perform work on the project and subcontract value amount; Identification of the affiliated registered apprenticeship program; Certification that the subcontractor is employing registered apprentices from that program to complete the contract; If electing to make payments under Regulation .02A(2) of this chapter, designation of the entity, either a registered apprenticeship program or the Fund, to which the subcontractor will make contributions; and Any other information that the Secretary requires. Contractors shall retain a copy of the written notice required in §A of this regulation that was provided to covered subcontractors for inspection and review by the Secretary for 3 years after the completion of their work on a covered contract. In the event the contractor or subcontractor is not affiliated with a registered apprenticeship program and is not able to comply with the certification requirement set forth in §A(2) of this regulation, the contractor or subcontractor shall estimate the number of employees per craft and trade for which there is a registered apprenticeship program and the number of hours they will be employed to complete the contract. Subcontractors shall comply with the same notice requirements as set forth in this regulation. Contractors and subcontractors who elect to make contributions to a registered apprenticeship program or the Fund are required to comply with the following requirements: Indicate on their capital construction payroll records their contributions under State Finance and Procurement Article, §17-6A- 03 or §17-6A-04, Annotated Code of Maryland; and Certify to the Secretary, or the Secretary’s designee, on a quarterly basis, that the contributions were sent to a registered apprenticeship program or to the Fund. Upon request from contractors or subcontractors, registered apprenticeship programs shall provide written documentation to the contractors or subcontractors verifying their affiliation with the applicable program. Thirty days prior to making a change in the designation of applicable apprenticeship or contribution to the Fund, a contractor or subcontractor shall log onto the Department’s website to indicate the intended change. A contractor or subcontractor making payments to the Fund may make a written request to the Secretary that the contributions be directed to a specific pre-apprenticeship or workforce development program. Upon notice from the Department’s Division of Workforce Development and Adult Learning that the registered apprenticeship program has been designated for contributions by a contractor or subcontractor, a registered apprenticeship program shall register on the Department’s website. A registered apprenticeship program shall comply with the following requirements: Complete the requested information on contributions received from contractors and subcontractors for each contract at the Department’s website on or before the last day of the month immediately following each calendar quarter; and Certify that all funds received are used solely for the purpose of improving or expanding apprenticeship training in the State. The Secretary, or the Secretary’s designee, may require an independent audit by a certified public accountant of a registered apprenticeship program to verify that contributions received from contractors and subcontractors are used consistently with requirements set forth in State Finance and Procurement Article, §§17-6A-01—17-6A-06, Annotated Code of Maryland and this chapter. The Secretary, or the Secretary’s designee, may investigate whether State Finance and Procurement Article, Title 17, Subtitle 6A, Annotated Code of Maryland, has been violated: On the Secretary’s, or the Secretary’s designee, own initiative; On receipt of a written complaint; or On referral from another State agency. The Secretary, or the Secretary’s designee, may require a contractor, subcontractor, or registered apprenticeship program to produce records as part of its investigation. The Secretary, or the Secretary’s designee, may enter a place of business to: Interview individuals; or Review and copy records. If after an investigation the Secretary, or the Secretary’s designee, determines that there is a violation of State Finance and Procurement Article, Title 17, Subtitle 6A, Annotated Code of Maryland, or a regulation adopted to carry out the title, the Secretary shall issue an administrative charge that shall: Describe in detail the nature of the alleged violation; Cite the provision of law or regulation that is alleged to have been violated; and State the penalty to be assessed, if any. Within a reasonable amount of time after the issuance of the administrative charge, the Secretary shall send a copy of the administrative charge to the alleged violator by regular mail with notice of the opportunity to request a hearing. Within 30 days of the postmark of the administrative charge sent to the alleged violator, the alleged violator may submit a written request for a hearing on the administrative charge and proposed penalty. If a hearing is not requested within 30 days of the postmark of the administrative charge sent to the alleged violator, the administrative charge, including any penalties, shall become a final order of the Secretary. If there is a request for a hearing, the Secretary may delegate the hearing to the Office of Administrative Hearings in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. A proposed decision of an administrative law judge shall become a final order of the Secretary unless, within 15 days of the issuance of the proposed decision: The Secretary orders review of the proposed decision; or The alleged violator submits to the Secretary a written request for review of the proposed decision. After review of the proposed decision under §I of this regulation, with or without a hearing on the record, the Secretary shall issue an order that affirms, modifies, or vacates the proposed decision. State Finance and Procurement Article, §§17-6A-01—17-6A-06, Annotated Code of Maryland Regulations .01—.10 recodified from COMAR 21.11.13 to COMAR 21.11.14 effective December 28, 2020 (47:26 Md. R. 1108) Regulations .01—.11 adopted effective December 28, 2020 (47:26 Md. R. 1108) This chapter provides that maximum contracting opportunities be extended to veteran-owned small business enterprises, as both prime contractors and subcontractors, and establishes that: Each procurement agency shall structure its procedures for making procurements to try to achieve an overall minimum of 3 percent of the unit's total dollar value of all procurement contracts made directly or indirectly with veteran-owned small business enterprises; and The requirements of this chapter may be applied to individual task orders competitively procured among contractors under a master contract as provided in COMAR 21.05.13.05. In this chapter, the following terms have the meanings indicated. Terms Defined. “Certification” means a determination by the certification agency through the procedures outlined in this chapter that a legal entity is a veteran-owned small business enterprise (VSBE) for purposes of these regulations. “Certification agency” means the Governor’s Office of Small, Minority & Women Business Affairs (GOSBA). “Certified VSBE” means a veteran-owned small business that holds a certification issued by the certification agency. “Control” means the exercise of the power to manage and operate a business enterprise. “Database” means the State’s Internet-based electronic procurement system. “Procurement agency” has the meaning stated in COMAR 21.01.02.01B. “Vendor” has the meaning stated in COMAR 21.01.02.01B. “Verification” means a business owner that is verified by the Maryland Department of Veterans Affairs or the U.S. Small Business Administration as a veteran. “Veteran” means an individual who is verified as having served on active duty in the armed forces of the United States, other than for training, and was discharged or released under conditions other than dishonorable. “Veteran-owned small business enterprise (VSBE)” means a for-profit business, other than a joint venture, that: Meets the size standards adopted by the U.S. Small Business Administration in 13 CFR §121.201 and any subsequent revision of that regulation; and Is at least 51 percent owned by one or more individuals who: Are veterans; and Control the management and daily operations of the business. Except to the extent that any provisions conflict with federal law, or as provided in §B of this regulation, this chapter applies to every procurement of supplies, services, maintenance, construction, construction-related services, architectural services, and engineering services by a procurement agency. Small procurements are not subject to this chapter. These procurements shall be made in accordance with COMAR 21.05.07. Procurement agencies shall use the Database as the primary resource to identify certified VSBEs when considering the application of a VSBE participation goal. Procurement agencies may also utilize the U.S. Small Business Administration and any other veteran resource or database to assist in identifying potential veteran vendors when considering the application of a VSBE participation goal. Nothing in this chapter is to be construed to relieve a procurement agency from attempting to achieve the State’s goal for certified VSBE participation. Each procurement agency shall make its procurements in accordance with this chapter. The Department of General Services, in executing its responsibility over procurement of information technology equipment and related services, shall require procurement agencies to make those procurements in compliance with this chapter. When delegating procurement authority to procurement agencies, the Department of General Services shall condition the delegation on compliance with this chapter. Procurement agencies shall use the forms and affidavits developed by the Governor’s Office of Small, Minority, and Women Business Affairs for reporting procedures required by this title. Before awarding a contract that includes a VSBE goal, the procurement officer shall use the Database to confirm that the VSBE vendor named to fulfill an established VSBE contract goal is certified by the Governor's Office of Small, Minority & Women Business Affairs (GOSBA). The head of each procurement agency shall designate an employee to be a VSBE liaison officer in the administration of that agency’s VSBE Program. The VSBE liaison officer shall be a high-level employee reporting directly to a Secretary, Deputy Secretary, or head of a procurement agency. The VSBE liaison officer is responsible for coordinating agency outreach efforts to the veteran business community, reviewing agency contracting procedures to ensure compliance with this chapter, assisting in the resolution of contracting issues, and for submitting required VSBE Program reports or information. Each procurement agency shall make a report annually within 90 days following the close of the fiscal year to the Governor’s Office of Small, Minority & Women Business Affairs that includes: The total number, value, and procurement category of its procurements from State-certified VSBEs as prime contractors, and separately as subcontractors; The number of waivers granted pursuant to Regulation .09 of this chapter; and An evaluation by the procurement agency of the success of its VSBE Program, which shall include a brief description of the procurement agency’s outreach efforts to VSBE prime and VSBE subcontractors. Each procurement agency shall furnish any other information or periodic reports requested by the Governor’s Office of Small, Minority & Women Business Affairs in connection with its VSBE procurements, or any other matters related to the administration, effectiveness, or continuation of the VSBE Program. The Governor’s Office of Small, Minority & Women Business Affairs shall prepare an annual report summarizing VSBE participation throughout the State, for publication on its website as well as submission by the end of each calendar year to the Board of Public Works, to the Legislative Policy Committee of the Maryland General Assembly, and to each procurement agency. To attain the overall and specific goals under Regulation .01A of this chapter, procurement agencies shall set, where appropriate, an overall VSBE goal, expressed as a percentage of the dollar value of the contract. Goal Setting Generally. A procurement agency shall assess the potential for VSBE prime and subcontractor participation in each contract and estimate the amount of participation if any before initiating the procurement. Some factors which may be used to determine the level of VSBE participation include: The extent to which direct solicitation at the prime contract level, subcontracting, or a combination of both is determined most likely to result in maximum VSBE participation in the contract; The number of certified VSBEs listed in the Database in addition to veteran-owned firms identified by the U.S. Small Business Administration and other resources and databases used to identify veteran-owned firms for a particular supply, service, maintenance, construction, construction-related service, architectural service, or engineering service; The geographical proximity, when relevant, of VSBEs to the location of the work to be performed; and The feasibility of subcontracting opportunities given the nature and extent of the proposed contract. VSBE Subcontracting Provisions. Solicitation Content. The solicitation shall contain provisions requiring bidders or offerors to: Identify specific work categories within the scope of the procurement appropriate for subcontracting; Conduct outreach through the Database or utilize the U.S. Small Business Administration and other resources and databases to assist in identifying potential veteran vendors. The veteran-owned vendor shall be a certified VSBE at the time of submission of the bid or proposal. Solicit certified VSBEs and veteran-owned firms in writing at least 10 days before bids or proposals are due, describing the identified work categories and providing instructions on how to bid on the subcontracts; Attempt to make personal contact with the VSBEs solicited and to document these attempts; Assist VSBEs to fulfill, or to seek waiver of, bonding requirements; and Attempt to attend prebid or other meetings the procurement agency schedules to publicize contracting opportunities to VSBEs. If a solicitation contains an MBE goal and a VSBE goal, participation by a subcontractor dually-certified as an MBE and a VSBE may be counted toward meeting both the MBE and VSBE contract goals to the extent its participation meets the cumulative but distinct MBE and VSBE contract goals, or portions thereof that it is committed to perform. Example: If the solicitation contains a 25 percent MBE goal and a 5 percent VSBE goal, the dually certified subcontractor shall perform 30 percent of the contract to obtain both goals. Participation by a dually-certified subcontractor may be counted toward the agency’s overall MBE and VSBE goals. On forms provided by the procurement agency, a bidder or offeror shall submit with its bid or proposal: A completed VSBE utilization affidavit including either an agreement to meet the certified VSBE participation goal or a request for a full or partial waiver; and A completed VSBE participation schedule that identifies the VSBE that the bidder or offeror agrees to utilize in the performance of the contract and the percentage of contract value attributed to each VSBE. The VSBE participation schedule shall: Include the name of each VSBE that will participate in the project; and Include the percentage of the contract to be paid to each VSBE for the work or supply. The failure of a bidder to accurately complete and submit the VSBE utilization affidavit and participation schedule may result in a determination that the bid is not responsive. The failure of an offeror to accurately complete and submit the VSBE utilization affidavit and the VSBE participation schedule may result in a determination that the proposal is not susceptible of being selected for award. The names of prime contractors requesting or purchasing solicitation documents for construction contracts shall be made available on request to any VSBE whose specialty suggests an interest in subcontracting. Each prime contractor receiving solicitation documents as part of a procurement with a VSBE goal shall be given the web address for the Database for purposes of soliciting subcontract quotations, bids, or offers from VSBEs. Counting Prime Participation Toward Overall and Contract Goals. A procurement agency may count a prime contractor dually-certified as an MBE and a VSBE toward the agency’s overall VSBE and MBE goals. A procurement agency may count the distinct, clearly defined portion of the work of the contract that a VSBE certified prime performs with its own work force toward meeting up to 100 percent of the contract’s VSBE goal. Direct Solicitation. As part of the solicitation process being employed for the business community in general, and in addition to the public notice requirements of COMAR 21.05.02.04 and 21.05.03.02B, a procurement agency shall send a copy of the solicitation or notice of the solicitation, or both, to a sufficient number of VSBEs listed in the Database, as determined by the procurement officer, as is likely to result in VSBE responses to the solicitation. Notification. Except for sole source, small, and emergency procurements, a copy of the solicitation notice for each procurement with an VSBE goal may be sent in an electronic format to the Maryland Department of Veterans Affairs for distribution to the appropriate veteran and small business assistance agencies and trade organizations. Prebid and Preproposal Conferences. When prebid or preproposal conferences are held, the procurement agency shall explain the VSBE subcontracting goal if applicable, the VSBE provisions of the solicitation, the documentation required, and its relationship to the determinations that will be made in connection with the evaluation process. The documentation in §C of this regulation is considered part of the contract and shall be furnished by the apparent successful bidder or offeror to the procurement officer within 10 working days from notification of apparent award, or from the date of the award, whichever is earlier. If the documentation is not furnished within the specified time, the bidder or offeror may be rejected as nonresponsible. A VSBE subcontractor project participation statement shall be furnished and signed by the bidder or offeror and each VSBE listed in the participation schedule. The project participation statement shall include: A statement of intent to enter into a contract between the prime contractor and each subcontractor; If a contract is executed between the procurement agency and the prime contractor or if the prime contract has been awarded and the procurement officer makes a request, copies of the subcontract agreement or agreements; and The amount and type of bonds required of VSBE subcontractors, if any. Other documentation considered appropriate by the procurement agency to ascertain bidder or offeror responsibility in connection with the contract VSBE participation goal shall be furnished by the bidder or offeror. If the VSBE utilization affidavit and participation schedule of the apparent successful bidder or offeror do not achieve the contract goal for VSBE participation, the apparent successful bidder or offeror shall submit documentation supporting the waiver request that was included with the bid or proposal as provided in Regulation .09 of this chapter. An agency head may waive any of the provisions of Regulations .07 and .08 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures. If, for any reason, the apparent successful bidder or offeror is unable to achieve the VSBE goal, the bidder or offeror may request, in writing, a waiver to include the following: A detailed statement of the efforts made to select portions of the work proposed to be performed by VSBEs; A detailed statement of the efforts made to contact and negotiate with VSBEs, including: The names, addresses, dates, and telephone numbers of the VSBEs; and A description of the information provided to VSBEs regarding the plans, specifications, and anticipated time schedule for portions of the work to be performed; As to each VSBE that placed a subcontract quotation or offer that the apparent successful bidder or offeror considers to be unacceptable, a detailed statement of the reasons for this conclusion; and A list of VSBEs found to be unavailable, which shall be accompanied by a VSBE Subcontractor Unavailability Certificate signed by the VSBE, or a statement from the apparent successful bidder or offeror that the VSBE refused to give the written verification. A waiver of a VSBE contract goal may be granted only upon a reasonable demonstration by the bidder or offeror that VSBE subcontract participation was unable to be obtained, or was unable to be obtained at a reasonable price, and if the agency head or designee determines that the public interest is served by a waiver. In making a determination under this section, the agency head or designee may consider engineering estimates, catalogue prices, general market availability, and availability of VSBEs in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between VSBE and non-VSBE cost of participation, and their impact on the overall cost of the contract to the State and any other relevant factor. An agency head may waive the provisions of Regulations .07 and .08 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures. When a waiver is granted, except waivers under §C of this regulation, one copy of the waiver determination and the reasons for the determination shall be kept by the VSBE liaison officer with another copy forwarded to the Governor's Office of Small, Minority & Women Business Affairs. If, at any time after submission of a bid or proposal and before execution of a contract, the apparent successful bidder or offeror determines that a VSBE listed on the participation schedule required under Regulation .07 of this chapter has become or will become unavailable, then the apparent successful bidder or offeror shall immediately notify the procurement officer in writing. An apparent successful bidder or offeror shall obtain approval from the procurement officer before any changes to the participation schedule may be made. The bidder or offeror shall make reasonable efforts to substitute another VSBE subcontractor to meet the goal. The request to amend the VSBE participation schedule shall include: An explanation of the reason for inclusion of the unavailable or ineligible firm on the original VSBE participation schedule; The name of each certified VSBE subcontractor that will substitute for the unavailable or ineligible certified VSBE subcontractor; A description of work to be performed by each certified VSBE subcontractor; The percentage of the contract to be paid to the certified VSBE subcontractor for the work or supply; and A full description of the bidder's or offeror's efforts to substitute another certified VSBE subcontractor to perform the work that the unavailable or ineligible certified VSBE subcontractor would have performed. The procurement officer shall consult with the VSBE liaison before deciding whether to approve a request to amend the VSBE participation schedule. Amendments to the VSBE Participation Schedule Occurring After the Date of Contract Award. For purposes of this regulation, “good cause” includes documented nonperformance by the certified VSBE or election by the certified VSBE to cease work on the contract. Failure of the certified VSBE to provide a bond as requested by the contractor is not considered to be nonperformance by the certified VSBE if the requested bond violates State Finance and Procurement Article, §13-227, Annotated Code of Maryland. A contractor may not terminate or otherwise cancel the contract of a certified VSBE listed on the VSBE participation schedule without: Showing good cause why the contract with the certified VSBE should be terminated or cancelled; Obtaining the prior written consent of the VSBE liaison; Obtaining approval of the head of the unit; and Subsequently amending the contract. The prime contractor shall make reasonable efforts to substitute another VSBE contractor to meet the goal, when good cause is shown. The procurement agency shall send a copy of the VSBE liaison's written consent to the Governor's Office of Small, Minority & Women Business Affairs. To ensure compliance with VSBE subcontract participation goals, the procurement agency shall verify that the VSBEs listed in the participation schedule are actually performing work and receiving compensation as set forth in the schedule. General. The certification agency is designated to certify, recertify, and decertify VSBEs. A procurement agency may not permit a vendor to participate in a procurement as a veteran-owned vendor unless it is identified as a certified VSBE in the Database. Vendor Registration. A veteran vendor seeking to be recognized as a certified VSBE shall register as a vendor in the State’s Internet-based electronic procurement system. A registered vendor shall submit veteran verification and complete the VSBE Program application in the State’s Internet-based electronic procurement system. Information Which May Be Requested. The certification agency may request the following information to assist in any certification, recertification, decertification, or participation determination. Failure to furnish the requested information within a reasonable time as specified in writing may result in an administrative closing of an application, a denial of certification or recertification, or a determination to decertify. The information consists of: Copies of articles of incorporation, bylaws, minutes, shareholder agreements, stock certificates, stock transfer ledgers, any additional profit-sharing agreements or buyout rights, or in the case of a partnership, the partnership agreement; Current financial statements, business licenses, federal personal income tax returns for the most current 2 years, including all schedules, federal business tax returns for the past 3 years, including all schedules, cancelled checks, resumes of principal parties, and any relevant personal and third-party agreements, such as rental and management agreements; and Copies of supporting veteran-related documents issued by the federal government. A certified VSBE shall have certified status in the Database at the time the contract is awarded in order for its participation to be counted toward the VSBE contract goal. All payments made shall be counted toward the VSBE goal under a contract entered into when the VSBE was certified. Failure of a certified VSBE to maintain certification may not be the cause of the termination of the contractual relationship for the remainder of the term of the contract. State Finance and Procurement Article, §§14-601—14-605; Chs. 343 and 344, Acts of 2015; Chs. 708 and 709, Acts of 2017; Ch. 740, Acts of 2018; Ch. 79, Acts of 2021 Effective date: July 23, 2012 (39:14 Md. R. 839) Regulation .01A amended effective March 11, 2019 (46:5 Md. R. 310) Regulation .01B amended effective June 29, 2020 (47:13 Md. R. 643) Regulation .02B amended effective January 2, 2017 (43:26 Md. R. 1449) Regulation .04D amended effective July 15, 2019 (46:14 Md. R. 623) Regulation .05 amended effective January 2, 2017 (43:26 Md. R. 1449) Regulation .05B amended effective March 16, 2015 (42:5 Md. R. 488) Regulations .01—.10 recodified from COMAR 21.11.13 to COMAR 21.11.14 effective December 28, 2020 (47:26 Md. R. 1108) Chapter revised effective May 16, 2022 (49:10 Md. R. 562) Regulation .01A amended effective September 16, 2024 (51:18 Md. R. 810) Regulation .02B amended effective April 1, 2024 (51:6 Md. R. 270) Regulation .03C, D amended effective April 1, 2024 (51:6 Md. R. 270) Regulation .04B amended effective September 18, 2023 (50:18 Md. R. 800) Regulation .04E adopted effective April 1, 2024 (51:6 Md. R. 270) Regulation .06B amended effective April 1, 2024 (51:6 Md. R. 270) Regulation .07B, C, E amended effective April 1, 2024 (51:6 Md. R. 270) Regulation .09A amended effective April 1, 2024 (51:6 Md. R. 270) Regulation .12 Verification repealed and new Regulation .12 Certification Procedures adopted effective April 1, 2024 (51:6 Md. R. 270) In this chapter, “Public employer” or “Public body” means a: Unit; County; Municipality; County board of education including the Baltimore City Board of School Commissioners; or Special taxing district. In this regulation, the following terms have the meanings indicated. Terms Defined. “Reasonably available quantities” means at least 90 percent of the items procured by the public employer are available within the employer’s delivery schedule. “Substantially less quality” means not in compliance with applicable safety and durability standards. “Unreasonable amount” means more than 5 percent over the lowest bid offering items manufactured outside the United States. A public employer may not knowingly buy, furnish, or require an employee to buy or acquire for use while on duty the following items if those items are manufactured outside of the United States: A uniform or any other item of apparel, the selection of which is not within the employee’s discretion except for the proper size of the item; or Safety equipment and protective accessories. A public employer may buy, furnish, or require an employee to buy or acquire for use while on duty the items listed in §C of this regulation that are manufactured outside of the United States if: The items or similar items are not manufactured or available for purchase in the United States; The items or similar items are not manufactured or available for purchase in the United States in reasonably available quantities; The price of the items or similar items manufactured in the United States exceeds the price of similar, available items that are not manufactured in the United States by an unreasonable amount; or The quality of the items or similar items manufactured in the United States is of substantially less quality than comparably priced, similar and available items not manufactured in the United States. In each bid or proposal subject to the requirements of this regulation, a bidder or offeror shall certify to the public employer whether the offered items are manufactured in the United States. If a bid or proposal offers items that are manufactured in the United States and outside the United States, the bid or proposal shall distinguish which items are manufactured in the United States. In this regulation, the following terms have the meanings indicated. Terms Defined. “Services” has the meaning stated in COMAR 21.01.02.01B and includes: Construction-related services; Architectural services; Engineering Services; and Energy performance contracts. “Substantially less quality” means not in compliance with applicable performance standards. “Unreasonable amount” means more than 5 percent over the lowest financial proposal or bid offering services provided outside the United States. This regulation applies to services contracts with an estimated value of $2,000,000 or more. In response to a solicitation issued by a public employer for services as defined in §B(1) of this regulation, a bidder or offeror shall disclose to the public employer: Whether the bidder or offeror or any proposed subcontractor has plans, at the time the bid or proposal is submitted, to perform any services required under the contract outside the United States; and If services required under the contract are anticipated to be performed outside the United States; Where the services will be performed; and The reason why it is necessary or advantageous to perform the services outside the United States. Except as provided in §F of this regulation, a public employer may not knowingly contract for architectural services, engineering services, construction-related services, or energy performance services unless the services are to be provided in the United States. A public employer may contract for services listed in §E of this regulation that are provided outside the United States if: The services are not available in the United States; The price of the services in the United States exceeds by an unreasonable amount the price of services provided outside the United States; or The quality of services in the United States is substantially less than the quality of comparably-priced services provided outside the United States. In each bid or proposal subject to the requirements of this regulation, a bidder or offeror shall certify to the public employer whether the offered services are provided in the United States. If a bid or proposal offers services that are provided in the United States and outside the United States, the bid or proposal shall distinguish which services are provided in the United States. In this regulation, the following terms have the meanings indicated. Terms Defined. “American-manufactured goods” means goods that are manufactured or assembled in the United States. Emergency Life Safety and Property Safety Goods. “Emergency life safety and property safety goods” means any goods when provided for the installation in, as part of, or as an addition to a system designed to: Prevent, respond to, alert regarding, suppress, control, or extinguish an emergency or the cause of an emergency that threatens life or property; or Assist in evacuation in the event of an emergency that threatens life or property. “Emergency life safety and property safety goods” includes systems or items for or relating to: Fire alarms; Fire sprinklers; Fire suppression; Fire extinguishing; Security; Gas detection; Intrusion detection; Access control; Video surveillance and recording; Mass notification; Public address; Emergency lighting; Patient wandering; Infant tagging; and Nurse call. “Emergency life safety and property safety goods” includes information technologies and telecommunications products and technologies that are used for the purposes listed in §B(2) of this regulation. “Goods” means tangible or movable personal property other than money or investment securities. “Information technologies and telecommunications products and technologies” means electronic information processing hardware or software used to generate, acquire, store, transform, process, retrieve, utilize, make available, transmit, or manipulate information or hardware or software used in the transmission of information, images, pictures, voice, or data by radio, video, or other electronic or impulse means. Public Work. “Public work” means a structure or work, including a bridge, building, ditch, road, alley, waterwork, or sewage disposal plant, that: Is constructed for public use or benefit; or Is paid for wholly or in part by public money. “Public work” does not include, unless let to a contract, a structure or work whose construction is performed by a public service company under order of the Public Service Commission or other public authority regardless of: Public supervision or direction; or Payment wholly or in part from public money. “Reasonably available quantities” means at least 90 percent of the goods procured by the public body are available within the public body’s delivery schedule. “Substantially less quality” means not in compliance with applicable safety and durability standards including warranty terms. “Unreasonable amount” means more than 5 percent over the lowest financial proposal or bid offering goods manufactured or assembled outside the United States. Except as provided in §D of this regulation, a public body shall require a contractor or subcontractor to use or supply American-manufactured goods in the performance of a contract for: Constructing or maintaining a public work; or Buying or manufacturing machinery or equipment that is to be installed at a public work site. A public body may contract for goods that are manufactured or assembled outside the United States: If the head of the public body determines that: The price of the American-manufactured goods exceeds by an unreasonable amount the price of similar manufactured goods that are not manufactured in the United States; The goods or similar goods are not manufactured or available for purchase in the United States in reasonably available quantities; The quality of the goods or similar goods manufactured in the United States is substantially less than the quality of comparably-priced, similar and available goods that are not manufactured in the United States; or The procurement of a manufactured good would be inconsistent with the public interest; or To procure emergency life safety and property safety goods. In each bid or proposal subject to the requirements of this regulation, a bidder or offeror shall certify to the public body: Whether the offered goods are emergency life safety and property safety goods; If the offered goods are not exempt from the requirements of this regulation, whether the offered goods are provided in the United States; If a bid or proposal offers goods that are provided in the United States and outside the United States, the bid or proposal shall distinguish which goods are provided in the United States. State Finance and Procurement Article, §§12-101, 14-401—14-403, 14-405, and 14-407, Annotated Code of Maryland;Ch. 593, Acts of 2010; Ch. 314, Acts of 2011 Effective date: Regulations .01—.03 recodified from COMAR 21.11.14 to COMAR 21.11.15 effective December 28, 2020 (47:26 Md. R. 1108) Regulation .04 adopted effective April 29, 2024 (51:8 Md. R. 369) In this chapter the following words have the meanings indicated. Terms Defined. “Aggregate employee health care expenses” means all employee health care expenses paid by a responsible bidder or subcontractor. Aggregate Social Security Wages. “Aggregate Social Security wages” means all wages paid by a responsible bidder or subcontractor to an employee for the period of time in which the wages are paid. “Aggregate Social Security wages” does not include wages that are above the federal Social Security contribution and benefit base. “Contractor” means a responsible bidder awarded a contract to complete a State-funded construction project. “Employee” means an individual who is employed by a responsible bidder, contractor, or subcontractor to work on or at the site of a State-funded construction project. “Employee health care expenses” means any costs for health care services that are paid by a responsible bidder or subcontractor to an employee, unless the employee has coverage under another plan, including: Contributions made on behalf of an employee to provide credible health care coverage in the form of any group policy, contract, or program that is written or administered by a disability insurer, health care service plan, fraternal benefits society, self-insured employer plan, or any other entity, in this State or elsewhere, that arranges or provides medical, hospital, and surgical coverage not designated to supplement other private or governmental plans; Contributions made on behalf of an employee to a health savings account as defined under §223 of the Internal Revenue Code or to any other account having a substantially equivalent purpose or effect without regard to whether the contributions qualify for a tax deduction or are excludable from employee income; Reimbursements to an employee for expenses incurred in the purchase of health care services; Payments to a third party for the purpose of providing health care services for an employee; Payments under a collective bargaining agreement for the purpose of providing health care services for an employee; and Costs incurred in the direct delivery of health care services to an employee. “Health care services” means medical care, services, or goods that: Qualify as a tax-deductible expense under §213 of the Internal Revenue Code; or Have a substantially equivalent purpose to medical care, services, or goods that qualify as a tax-deductible expense under §213 of the Internal Revenue Code. “Subcontractor” means a person: Listed on a responsive bid to provide construction services under a portion of a contract with the State; or Added to a contract with the State after the contract is awarded in order to provide construction services under a portion of the contract. This chapter does not apply to a small business with 30 or fewer employees. Except as provided in §A of this regulation, bidders, contractors and subcontractors on State-funded construction projects awarded through competitive sealed bidding under COMAR 21.05.02 shall pay employee health care expenses as outlined in §C of this regulation. A bidder, contractor, or subcontractor is deemed to pay employee health care expenses if it: Pays aggregate employee health care expenses of at least 5 percent of the aggregate Social Security wages paid by the bidder, contractor, or subcontractor respectively; or Pays 50 percent or more of the required premium necessary to obtain coverage by a credible health care insurance plan. For bids opened before July 1, 2021, a bidder, contractor, or subcontractor is deemed to pay employee health care expenses if it: Pays some portion of employee health care expenses under a contract with a credible health care insurance plan or through a collective bargaining agreement; and Will meet the requirements of either §C(1) or (2) of this regulation on renewal of either the contract with a credible health care insurance plan, or the collective bargaining agreement. Each bidder, contractor, and subcontractor seeking to perform work on a State-funded construction project shall certify in its bid submission that it pays employee health care expenses by completing and submitting the following certification form: Addition of New Subcontractors. The certification required pursuant to §A of this regulation shall be submitted prior to the addition of a new subcontractor on existing contracts. Supporting Documentation. A procurement officer may require a bidder or subcontractor to submit records to the procurement officer that are sufficient to support the bidder or subcontractor’s certification, including a certificate of insurance or a valid contract. State Finance and Procurement Article, §§17-801 et seq., Annotated Code of Maryland Effective date: May 17, 2021 (48:10 Md. R. 401)