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)