Title 21 — Subtitle 12. Procurement of Architectural Services and Engineering Services
Chapter 01. General
Regulation .01 General.LinkCopy Citation
A.
The selection of architects and engineers to provide design services for public improvements undertaken by the State is managed by the Department of Transportation for roads, highways, bridges, and certain other projects for which the Department of Transportation has responsibility, and by the Department of General Services for all other public improvements.
B.
A procedure for selecting architectural services and engineering services exists. COMAR 21.12.02 describes the method used by the aforementioned Departments for selecting architectural services and engineering services for projects and indefinite delivery contracts for which the architectural services or engineering services are estimated to cost over $200,000. COMAR 21.12.03 describes the method for the aforementioned Departments’ projects with costs of $200,000 or less.
Chapter 02. Department of Transportation and Department of General Services; A/E Services Exceeding $200,000
Regulation .01 General.LinkCopy Citation
A.
State Finance and Procurement Article, Title 13, Subtitle 3, Annotated Code of Maryland, specifies certain duties and criteria in selecting architects and engineers from whom professional services are procured.
B.
Definitions.
(1)
“Architectural and engineering services” means architectural services, engineering services, or both.
(2)
Architectural Services.
(a)
“Architectural services” means professional or creative work that is performed in connection with the design and supervision of construction or landscaping, and that requires architectural education, training, and experience.
(b)
“Architectural services” includes consultation, research, investigation, evaluation, planning, architectural design and preparation of related documents, and coordination of services furnished by structural, civil, mechanical, and electrical engineers and other consultants.
(c)
“Architectural services” does not include construction inspection services.
(3)
"Department of General Services” or “General Services” is delegated to procure architectural and engineering services for all other public improvements for State agencies other than Transportation.
(4)
"Department of Transportation” or “Transportation” includes Maryland Transportation Authority (MDTA) and the following Transportation Business Units: Maryland Department of Transportation (MDOT), Maryland Aviation Administration (MAA), Maryland Port Administration (MPA), Maryland State Highway Administration (SHA), Maryland Transit Administration (MTA), and Maryland Vehicle Administration (MVA).
(5)
Engineering Services.
(a)
“Engineering services” means professional or creative work that is performed in connection with utilities, structures, buildings, machines, equipment, and processes and that requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences.
(b)
“Engineering services” includes consultation, investigation, evaluation, planning, design, and inspection of construction for the purpose of interpreting and assuring compliance with specifications and design within the scope of inspection services.
(6)
“Expression of Interest” means a request containing adequate information to determine a reduced candidate list.
(7)
“Indefinite Delivery Contract” provides for an indefinite quantity of architectural or engineering services for a fixed time.
(8)
“Procuring Agency” is the Department of General Services (DGS) or the Maryland Department of Transportation (MDOT), whichever entity is responsible for the specific procurement.
C.
The following are not subject to this chapter:
(1)
Professional services rendered through State agencies and local jurisdictions;
(2)
Research and development projects; or
(3)
Management services not related to architectural and engineering projects.
Regulation .02 Applicability.LinkCopy Citation
A.
This chapter applies to the selection of consultants for procurement of architectural and engineering services in excess of $200,000.
B.
Procedures relating to the development of various contracts and agreements are not included here.
Regulation .03 Request for Procurement of Services.LinkCopy Citation
A.
An agency desiring to procure architectural or engineering services related to transportation and exceeding $200,000 shall submit to the Secretary of Transportation or designee, or if not related to transportation, to the Secretary of General Services or designee, documentation to support its position that the services cannot or for reason should not, be provided feasibly or economically by existing in-house resources.
B.
The Secretary of Transportation or General Services or their designee shall review the request, and if acceptable, certify to the Procuring Agency that the services cannot be provided by existing in-house resources.
C.
After receipt of the Secretary’s or designee’s certification, the agency requesting the services shall finalize a description of the project and a comprehensive scope of the services required. The scope of services shall be completed before the solicitation for the procurement of services, unless otherwise directed by the Procuring Agency’s head or designee.
Regulation .04 Expression of Interest.LinkCopy Citation
A.
After receipt of the Secretary’s or designee’s certification, the Procuring Agency, using text prepared by the agency requesting the services, shall place public announcements on eMaryland Marketplace (eMM) and any optional agency identified publications and/or websites indicating that the request to procure architectural and engineering services has been certified by the Secretary of Transportation or the Secretary of General Services or their designee. MDOT shall advertise in the Daily Record or similar publication.
B.
Public announcement guidelines are as follows:
(1)
Generally, public announcements shall be places for a specific project. However, to the extent practical and feasible, as determined by the Procurement Agency, two or more projects which are similar in nature and scope of services may be included in a single public announcement, and multiple reduced candidate lists established from those responding to the announcement.
(2)
In some cases, the Procuring Agency may desire to award two or more Indefinite Quantity contracts which are identical in nature and scope of services, for work to be performed in the same defined geographical area. In these cases, the public announcement shall indicate that two or more contracts may be awarded from a single reduced candidate list.
C.
The public announcements shall contain at least the following:
(1)
Agency’s name.
(2)
Project number.
(3)
Description of the Project, and the architectural and/or engineering service to be procured.
(4)
Indication of:
(a)
Specific requirements, as a prerequisite for consideration;
(b)
The major factors/criteria for the project;
(c)
Indication how interested consultants may receive additional documentation about the procurement, if available; and
(d)
Provision of a minimum of 20 days from the date of announcement for response by interested consultants.
D.
If requiring the optional Expression of Interest submission separate from the Technical Proposal, the public announcements must also include the following:
(1)
A statement from respondents’ indicating of the prime contractor participant or participants, and the areas of involvement of each named Sub-consultant. The statement shall further advise respondents that if they are placed on the reduced candidate list, their submission of proposals should substantially reflect this same composition and areas of involvement.
(2)
Indication that reduced candidate lists shall consist of two or more consultants from whom technical proposals shall be requested, and that contract negotiations shall be conducted with the consultant(s) which submits the highest rated technical proposal(s).
(3)
The major factors/criteria for the establishment of a reduced candidate list.
Regulation .05 Selection Procedure.LinkCopy Citation
A.
Candidate List. The Procuring Agency shall establish a list of all consultants who have responded to the solicitation.
B.
Qualification Criteria. Beyond the specific criteria to be applied to individual projects, general qualification criteria to be evaluated for each respondent consultant may include, but not be limited to, the following:
(1)
Past performance on similar work;
(2)
Compatibility of the size of the consultant with the size of the proposed project;
(3)
Capacity to accomplish the proposed work in the required time;
(4)
Financial responsibility; and
(5)
Measures of protection for the State against errors and omissions.
C.
Reduced Candidate List. The Procuring Agency’s Evaluation Committee shall evaluate the candidate list, and, by applying uniform criteria may, where applicable, establish a reduced candidate list composed of two or more candidates.
D.
Notification to Expression of Interest Respondents.
(1)
The Procuring Agency shall immediately notify the consultants on the reduced candidate list that they have qualified and can anticipate a request for technical proposals.
(2)
The Procuring Agency shall immediately notify the consultants not on the reduced candidate list that they have not qualified and inform them of their rights as follows:
(a)
A consultant not on the reduced candidate list is entitled to a debriefing with an Evaluation Committee’s representative designated by the Procuring Agency to discuss the non-qualification.
(b)
The request for a debriefing shall be written and shall be received by the procurement officer within 7 days of the consultant receiving notice.
E.
Request for Technical Proposals.
(1)
The Request for Technical Proposals may be combined as a single step with the Expression of Interest, section .04 of this chapter. The procurement officer will make the determination to combine these steps.
(2)
If the Technical Proposals are not combined with the Expression of Interest, upon establishment of a reduced candidate list, the requesting agency shall:
(a)
Forward the reduced candidate list to the Procurement Officer; and
(b)
Prepare and forward to the Procurement Officer a request for technical proposals package, including a description of the project and a comprehensive scope of the services required, major factors/criteria to be used in evaluating proposals, and any other agency requirements.
(3)
If the Technical Proposals are not combined with the Expression of Interest, upon receipt of the reduced candidate list and the request for technical proposals package, the Procurement Officer shall send a request for technical proposals to each candidate on the reduced candidate list. The request for proposals shall state that the agency shall conduct contract negotiations with the consultant(s) which submits the highest rated technical proposal(s).
F.
Pre-Proposal Meeting. If deemed necessary by the agency, at the time the request for proposals is sent out, a date shall be designated for a pre-proposal meeting.
G.
Technical Proposal Evaluation and Recommendation.
(1)
If requiring an Expression of Interest the technical proposal shall be reviewed by the Procuring Agency for consistency with the Expression of Interest. Substantial modification in either composition or areas of involvement from that shown in the consultant’s statement is grounds for disqualification of the proposal. However, upon a showing of compelling justification, the Procuring Agency may accept the proposal, as modified, if this is determined, in the Evaluation Committee’s discretion, as necessary. This determination shall be made as soon as practicable on the basis of the justification submitted by the consultant.
(2)
The Procuring Agency’s Evaluation Committee shall do the following:
(a)
Evaluate the technical proposals received in response to the request for proposals.
(b)
Make recommendations, based on the steps above, for selection in ranked order to the head of the Procuring Agency or designee.
(3)
The head of the Procuring Agency or designee shall either concur with the recommendations of the Procuring Agency’s Evaluation Committee or in the event of non-concurrence, shall document the reasons for non-concurrence and request reconsideration of the recommendations by the Procuring Agency’s Evaluation Committee.
H.
Notification to Respondents.
(1)
The Procurement Officer shall immediately notify the top-ranked consultant(s) and explain what subsequent actions are to be taken.
(2)
The Procurement Officer shall immediately notify the other non-selected consultant(s) and inform them of their ranking and their rights as follows:
(a)
The consultant(s) are entitled to a debriefing to discuss their status. The request for a debriefing shall be written and must be received by the procurement officer within 7 days of the consultant receiving notice.
(b)
A consultant still dissatisfied after the debriefing is entitled to protest the decision in accordance with COMAR 21.02.02.
I.
Contract Negotiations.
(1)
The Negotiation Team shall be designated by the Procuring Agency for the purpose of conducting contract negotiations.
(2)
Contract negotiations shall be initiated as follows:
(a)
The Procuring Agency, through the Negotiation Team, shall initiate contract negotiations with the consultant(s) which the Procuring Agency’s Evaluation Committee has ranked highest based on the evaluation of the technical proposals.
(b)
In those cases where the agency desires to award two or more open-end contracts, negotiations may be conducted simultaneously with two or more of the consultants which have submitted the highest rated technical proposals.
(3)
The agency shall determine that the negotiated price and all rates to be paid under the contract are fair, competitive, and reasonable. In making that determination, the agency shall:
(a)
Consider the scope and complexity of the professional services required; and
(b)
Conduct a detailed analysis of the cost of the services.
(4)
In cases of unsuccessful negotiations, the agency shall act as follows:
(a)
If the agency is unable to negotiate a satisfactory contract with the highest ranked consultant at a price which it determines to be fair, competitive, and reasonable, the agency, with the approval of the agency head or designee, shall terminate negotiations with that consultant. The agency then shall negotiate with the second-ranked consultant in the same manner. If agreement cannot be reached with the second-ranked consultant, the Procuring Agency shall negotiate with other ranked consultants, consecutively in their order of ranking until award or a decision to suspend negotiations and cancel the solicitation has been made by the Procuring Agency.
(b)
In those cases when simultaneous negotiations are being conducted with two or more consultants for the awarding of open-end contracts, and the agency is unable to negotiate a satisfactory contract with any of the highest ranked consultants, the agency then shall negotiate with other ranked consultants consecutively in their order of ranking until award or a decision to suspend negotiations and cancel the solicitation has been made by the Procuring Agency.
(5)
If the agency is unable to negotiate a satisfactory contract with any of the Consultants selected and ranked by the Procuring Agency’s Evaluation Committee, the Procurement Officer shall request the:
(a)
Evaluation committee to make recommendations for the selection of additional consultants, in ranked order; and
(b)
Negotiation team to continue negotiations in accordance with this section until a satisfactory agreement is reached; or
(c)
Terminate the solicitation.
(6)
The negotiation team shall submit its recommendations to the head of the agency or designee for concurrence.
Regulation .06 Work Assignments Under Indefinite Quantity Contracts.LinkCopy Citation
A.
Work Assignments.
(1)
After the Board of Public Works has approved the award of an indefinite quantity contract, work may be assigned to selected consultants in accordance with this section and other requirements of State procurement law.
(2)
The Procuring Agency and the consultant shall agree on the specific scope of services to be performed, the maximum hours or fees approved for the specific work assignment, and other matters pertinent to the work assignment.
(3)
The Procurement Agency and the consultant shall execute a work order subject to the terms and conditions of the original indefinite quantity contract and all additional agreed upon terms.
(4)
The Procurement Agency shall obtain all other approvals required by law.
(5)
A signed work order shall become a part of the contract.
B.
Basis of Assignment Under Indefinite Quantity Contracts.
(1)
Work assignments may be rotated among firms receiving awards under an indefinite quantity contract starting in the order of the ranking of the firms during selection, unless the unit issuing the work assignment finds that:
(a)
The firm is unable to perform the assignment, lacks the capability in all respects to perform fully the contract requirements, or lacks the integrity or reliability that will assure good faith performance;
(b)
The hours or fees proposed by the firm for the services needed cannot successfully be negotiated to an amount the unit considers fair and reasonable;
(c)
Another firm has special experience or qualifications, including geographic proximity to the site for which services are needed, that make it in the State’s best interest to give the assignment to the other firm; or
(d)
Assignment to another firm would tend to balance to a greater extent, among firms on the indefinite quantity contract list being used, the fees paid or payable for work assignments previously issued.
(e)
If assignment in this manor conflicts with a federal funding requirement on a project, then the federal method for assignment shall be utilized.
(2)
If the unit finds that any of the circumstances listed in §C(1)(a) or (b) of this regulation exist, the next firm in the rotation shall be considered for the assignment as provided in §C(1) of this regulation.
(3)
If the unit finds that any of the circumstances listed in §C(1)(c) of this regulation exist, the unit shall issue the assignment to the firm considered to have the necessary special experience or qualifications.
(4)
If the unit finds that the circumstance listed in §C(1)(d) of this regulation exists, the unit may issue the work order to the firm which before that time has received work assignments worth the least amount in fees paid or payable under the indefinite quantity contract being used.
Regulation .07 Selection.LinkCopy Citation
Contract Awards must be published in eMaryland Marketplace no later than 30 days after approval from the Board of Public Works.
Regulation .08 Compensation for Services.LinkCopy Citation
A.
Unacceptable Methods. The following methods of compensation are not acceptable:
(1)
Cost plus a percentage of cost;
(2)
Percentage of construction cost.
B.
The determination of the method of compensation shall be made by the Procurement Agency.
C.
Prices shall be negotiated in accordance with State Finance and Procurement Article, §13-214, Annotated Code of Maryland.
D.
Audit. The Procurement Agency shall arrange for pre-audits and post-audits, as required. All rates used in cost-plus-fixed-fee compensations shall be verified.
E.
Monitoring.
(1)
A follow-up monitoring system to fairly evaluate the consultant(s)’ performance shall be initiated by the Procuring Agency. As a minimum, this shall include an evaluation of quality of work, timeliness of completion, effectiveness, and responsiveness to the agency’s needs.
(2)
The Procuring Agency shall maintain a post-evaluation file for each consultant performing work and shall be considered in performing their evaluations.
Regulation .09 Waiver of Selection on a Competitive Basis.LinkCopy Citation
A.
Waiver Criteria. The Agency head or designee shall waive selection on a competitive basis in writing under any of the following conditions:
(1)
When the public health and safety is endangered following any natural disaster or Act of God;
(2)
When a state of emergency is declared by the Governor;
(3)
When it determines that a bona fide single source of services, supply, or proprietary product or process is required, as determined by the procurement officer;
(4)
When the procurement officer determines that the services cannot be so completely defined as to lend themselves to procedures for selection on a competitive basis;
(5)
When a project of a complex nature carried out in phases makes it not feasible to continue subsequent phases with other than the first phase source, as determined by the procurement officer; or
(6)
When, upon recommendation by the Procurement Agency head or designee, and accompanied by a finding by the Governor of extraordinary circumstances, the Board of Public Works determines that urgent circumstances require prompt action and that the selection of an architectural-engineering consultant for a particular project be made on an expedited basis, that an expedited selection best serves the public interest, and that the need for the expedited selection outweighs the benefits of making a selection on a competitive basis.
B.
Procedure for Waiver Action.
(1)
If the Agency waives selection on a competitive basis, in writing, in emergency situations described in §A(1) or (2) of this regulation, the procurement agency involved may act immediately.
(2)
Waivers described in §A(3), (4), and (5) of this regulation, shall be requested by the head of the involved Procuring Agency. The requirements of Regulation .03 of this chapter, are not waived.
(3)
Waivers described in §A(6) of this regulation, shall be granted pursuant to the action taken by the Board of Public Works.
C.
Documentation of Waiver Action. All waivers granted by the procurement agency shall be reported to the Legislative Policy Committee within 30 days and published in eMaryland Marketplace.
Chapter 03. Department of Transportation and Department of General Services; A/E Services, $200,000 or Less
Regulation .01 General.LinkCopy Citation
Architectural and engineering services contracts costing $200,000 or less awarded through the Department of Transportation (MDOT) and the Department of General Services (DGS) result from solicitations and negotiations conducted by the Procuring Agency requiring the services. A list of candidate consultants, consisting of two or more consultants qualified to perform the services, is established by staff within the Procuring Agency. The consultants on the candidate list are requested to submit technical proposals for the requested services. The technical proposals are evaluated by staff within the Procuring Agencies Evaluation Committee and a recommendation for selection is made to the Procurement Agency head or designee. A contract for the requested services is then negotiated with the selected consultant subject to review and approval by the Procurement Agency head or designee.
Chapter 04. Department of General Services; A/E Services Exceeding $200,000
Repealed
Chapter 05. Department of General Services; A/E Services $200,000 or Less
Repealed