.02 Solicitation Requirements.
A. Each solicitation and contract shall state whether electronic transactions are permitted or required for that procurement
consistent with law and regulation. If the solicitation or contract does not specify that electronic transactions are permitted or required, bidders and offerors may not use electronic means for any part of the procurement except as otherwise provided for in law or regulation, including COMAR 21.10.02.02.
B. (text unchanged)
Subtitle 05 PROCUREMENT METHODS AND PROJECT DELIVERY METHODS
21.05.03 Procurement by Competitive Sealed Proposals
Authority: State Finance and Procurement Article, §§12-101, 13-104, 13-105, Annotated Code of Maryland
.01 Preference.
Procurement by competitive sealed proposals is the preferred method for:
A. The procurement of human, social, cultural or educational services; [and]
B. Real property leases[.]; and
C.
Security services with an expected value that is greater than $1,000,000.
21.05.07 Small Procurement Regulations ($100,000 or Less)
Authority: State Finance and Procurement Article, §§12-101, 13-109, 14-301—14-308, 14-406, and 15-226, Annotated Code of Maryland
.01-05 (text unchanged)
.06 Standards.
A-F. (text unchanged)
G. Contract Clauses. (text unchanged)
(1)— (8) (text unchanged)
(9) Prompt Payment of Subcontractors
(a) This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §G(9)(a)—(d) of this regulation, the terms “undisputed amount", “prime contractor", “contractor", [and] “subcontractor", and “supplier" have the meanings stated in COMAR 21.10.08.01.
(b) A contractor shall promptly pay its subcontractors and suppliers an undisputed amount to which a subcontractor
or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.
(c) If a contractor fails to make payment within the period prescribed in §G(9)(b) of this regulation, a subcontractor
or supplier may request a remedy in accordance with COMAR 21.10.08.
(d) (text unchanged)
H-F. (text unchanged)
21.05.08 Mandatory Written Solicitation Requirements
Authority: Election Law Article, §§14-101—14-108; State Finance and Procurement Article, §§3-412, 3.5-311, 11-206, 12-101, 13-207, 13-218, 13-221, 14-303, 14-308, 14-406, 16-102, 16-202, 16-203, 17-401—17-402, and Title 19; Annotated Code of Maryland; Ch. 293, Acts of 2009
.07 Bid/Proposal Affidavit.
A. (text unchanged)
B. Mandatory Solicitation Addendum. The solicitation addendum shall be in substantially the same form as follows and include all certification language required by the State Finance & Procurement Article, Annotated Code of Maryland:
BID/PROPOSAL AFFIDAVIT
A. Authority
I HEREBY AFFIRM THAT:
I (print name)_____________________ possess the legal authority to make this Affidavit.
B. CERTIFICATION REGARDING COMMERCIAL NONDISCRIMINATION
[The undersigned bidder hereby certifies and agrees that the following information is correct: In preparing its bid on this project, the bidder has considered all proposals submitted from qualified, potential subcontractors and suppliers, and has not engaged in “discrimination" as defined in §19-103 of the State Finance and Procurement Article of the Annotated Code of Maryland. “Discrimination" means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or commercial treatment of a vendor, subcontractor, or commercial customer on the basis of race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, sexual identity, genetic information or an individual's refusal to submit to a genetic test or make available the results of a genetic test, disability, or any otherwise unlawful use of characteristics regarding the vendor's, supplier's, or commercial customer's employees or owners. “Discrimination" also includes retaliating against any person or other entity for reporting any incident of “discrimination". Without limiting any other provision of the solicitation on this project, it is understood that, if the certification is false, such false certification constitutes grounds for the State to reject the bid submitted by the bidder on this project, and terminate any contract awarded based on the bid. As part of its bid or proposal, the bidder herewith submits a list of all instances within the past 4 years where there has been a final adjudicated determination in a legal or administrative proceeding in the State of Maryland that the bidder discriminated against subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of that determination, including any remedial action taken. Bidder agrees to comply in all respects with the State's Commercial Nondiscrimination Policy as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland.]The undersigned bidder hereby certifies and agrees that the following information is
correct:In preparing its bid on this project, the bidder has considered all proposals
submittedfrom qualified, potential subcontractors and suppliers, and has not engaged
in“discrimination" as defined in §19–103 of the State Finance and Procurement Article of
theAnnotated Code of Maryland; to wit: discrimination in the solicitation, selection,
orcommercial treatment of any subcontractor, vendor, supplier, or commercial customer
onthe basis of race, color, religion, ancestry or national origin, sex, age, marital status,
sexualorientation, gender identity, or on the basis of disability or other unlawful forms
ofdiscrimination. Without limiting the foregoing, “discrimination" also includes
retaliatingagainst any person or other entity for reporting any incident of “discrimination".
Withoutlimiting any other provision of the solicitation for bids on this project, it is understood
andagreed that, if this certification is false, such false certification will constitute grounds
forthe State to reject the bid submitted by the bidder on this project, and terminate
anycontract awarded based on the bid. As part of its bid or proposal, the bidder shall
provideto the State a list of all instances within the immediate past 4 years where there has
beena final adjudicated determination in a legal or administrative proceeding in the State
ofMaryland that the bidder discriminated against its subcontractors, vendors, suppliers,
orcommercial customers, and a description of the status or resolution of that
complaint,including any remedial action taken. As a condition of submitting a bid or proposal to
theState, the bidder agrees to comply with the State's Commercial Nondiscrimination
Policyas described under Title 19 of the State Finance and Procurement Article of the
AnnotatedCode of Maryland."
B-1-N (text unchanged)
21.05.12 Procurement of Human, Social, Cultural, and Educational Services
Authority: State Finance and Procurement Article, §§12-101, 13-102, 13-104, 13-106, 13-108, and 13-109, Annotated Code of Maryland
.02 Notice of Certain Contracts.
A. (text unchanged)
B. Contracts with Government Entities.
(1) This section applies to any award, renewal, or extension of a human, social, or educational services contract with a State agency, a political subdivision of the State, or other government, that results in a total contract price of more than [$25,000]
$50,000.
(2)The procuring unit shall give notice in eMaryland Marketplace of [the contract ] any award, extension, or renewalof a human, social, or educational services contract with a State agency, a political subdivision of the State, or other government, that results in a total contract price of more than [$25,000]$50,000 [extension, or renewal], not more than 30 days after the approval and execution of the contract, extension, or renewal.
21.05.16 Proof of Concept Procurement
Authority: State Finance and Procurement Article, §§12-101, 13-102, 13-116, and 14-303, Annotated Code of Maryland; Ch. 774, Acts of 2017
.01 Proof of Concept Definitions and Procedures
A. Proof of Concept means a test, evaluation, demonstration, or pilot project of a good, service, or technology in a real–world environment to evaluate whether the good, service, or technology can be successfully deployed and is beneficial to the State, in accordance with State Finance and Procurement Article, §13-116(A), Annotated Cod of Maryland.
B. A Competitive Proof of Concept Procurement means a formal competitive procurement method that may be used to solicit proposals for the conduct of a proof of concept prior to full implementation when the head of a unit determines the process to be appropriate and in the best interests of the unit, including:
(1) Testing software–as–a–service or off–the–shelf software;
(2) Testing new, innovative products or services; or
(3) Testing a product or service conceptualized or conceived of by a unit of State government, in accordance State Finance and Procurement Article, §13-116(B)(1), Annotated Code of Maryland.
C. After obtaining the approval of the head of the procurement agency and before conducting a competitive proof of concept procurement, the procuring unit shall obtain approval from the Secretary of Information Technology, or the Secretary's Designee.
D. The Secretary of Information Technology may grant approval for a competitive proof of concept procurement if the procuring unit:
(1) Has sufficient internal resources to manage the proof of concept, including human capital, subject matter expertise, and technological infrastructure, or has the means to obtain these resources; and
(2) Enters into a memorandum of understanding with the Department of Information Technology that requires regular status updates, vendor capacity, and any other information necessary for the Department of Information Technology to evaluate whether the proof of concept can be successfully deployed and is beneficial to the State.
.02 Proof of Concept Solicitation.
A. A Competitive Proof of Concept Procurement:
(1) May be conducted through the issuance of a solicitation by any method of procurement authorized under COMAR 21.05.01.01; and
(2) Shall include a statement of the following:
(a) The scope of work or project description, including
(i) the intended use,
(ii) quantity,
(iii) estimated time frame for the proof of concept, and
(iv) anticipated number of proof of concept awards that will be made; and
(b) The factors, including price, that will be used in evaluating proposals and the relative importance of each.
B. A Competitive Proof of Concept Procurement solicitation may be distributed to vendors known to offer goods or services within the scope of the proof of concept and shall, except for procurements less than $15,000 not otherwise required by law to be posted, be posted on eMaryland Marketplace Advantage.
.03 Proof of Concept Evaluation.
A. After receipt of proposals but before award of a procurement contract, a unit may:
1) conduct discussions with an offeror to ensure full understanding of (a) the requirements of the unit, as set forth in the request for proposals; and (b) the proposal submitted by the offeror; and
(2) request product samples for testing by the unit or a demonstration of a product or service and use these samples or demonstrations in its evaluation process.
B. A request for product samples for testing or demonstration made under subsection A(2) of this regulation shall be issued to all offerors deemed reasonably susceptible for award at the time of the request.
.04 Proof of Concept Award.
A unit may award one or more of the proposals a contract for the proof of concept.
.05 Eligibility for Subsequent Implementation Procurements.
A person awarded a proof of concept procurement shall be eligible to bid on a procurement to implement a proposal related to the Proof of Concept procurement.
Subtitle 7 CONTRACT TERMS AND CONDITIONS
21.07.01 Mandatory Contract Provisions — All Contracts (except as provided under COMAR 21.05.07, 21.07.02, and 21.07.03)
Authority: Election Law Article, §§14-101—14-108; General Provisions Article, §§5-101 and 5-503; State Finance and Procurement Article, §§12-101, 13-211, 13-217—13-219, 13-221—13-223, 13-317, 15-226 ,16-202, 17-401, 17-402, and 19-114; Annotated Code of Maryland; Chs. 588, 589, and 630, Acts of 2017; Ch. 403, Acts of 2019
.08 Nondiscrimination in Employment.
Mandatory provision for all contracts. The following clause is preferred:
“The Contractor agrees: (a) not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, sexual orientation, gender [identification]
identity, marital status, national origin, ancestry genetic information or any otherwise unlawful use of characteristics, or disability of a qualified individual with a disability unrelated in nature and extent so as to reasonably preclude the performance of the employment, or the individual's refusal to submit to a genetic test or make available the results of a genetic test; (b) to include a provision similar to that contained in subsection (a), above, in any underlying subcontract except a subcontract for standard commercial supplies or raw materials; and (c) to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause."
.26 Commercial Nondiscrimination Clause.
A. The following provision is mandatory for all State contracts and subcontracts: “As a condition of entering into this Agreement,
the company represents and warrants that it will comply with the State's Commercial Nondiscrimination Policy, as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland. As part of such compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry[,]
or national origin, sex, age, marital status, sexual orientation, [sexual]
gender identity, [genetic information or an individual's refusal to submit to a genetic test or make available the results of a genetic test] or on the basis of disability, or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that
nothing contained in this clause [does not]
shall prohibit or limit
otherwise lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. Contractor understands that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party."
B. (text unchanged)
.31 Prompt Payment of Subcontractors.
Mandatory provisions for all contracts:
A. This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, § 15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §§ A--D of this regulation, the terms “undisputed amount", “prime contractor", “contractor", and “subcontractor," [and] “supplier", and “supplier" have the meanings stated in COMAR 21.10.08.01.
B. A contractor shall promptly pay its subcontractors
or suppliers an undisputed amount to which a subcontractor
or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.
C. If a contractor fails to make payment within the period prescribed in § B of this regulation, a subcontractor
or supplier may request a remedy in accordance with COMAR 21.10.08.
D. (text unchanged)
21.07.02 Mandatory Construction Contract Clauses
Authority: State Finance and Procurement Article, §§12-101, 13-216, 13-218, 13-225, 15-226, and 17-801—17-804, Annotated Code of Maryland
.05-2 Prompt Payment of Subcontractors.
Mandatory provisions for all construction contracts:
A. This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, §15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §§A—D of this regulation, the terms “undisputed amount", “prime contractor", “contractor", [and] “subcontractor", and “supplier" have the meanings stated in COMAR 21.10.08.01.
B. A contractor shall promptly pay its subcontractors
or suppliers an undisputed amount to which a subcontractor
or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.
C. If a contractor fails to make payment within the period prescribed in §B of this regulation, a subcontractor
or supplier may request a remedy in accordance with COMAR 21.10.08.
D. (text unchanged)
.10 Performance and Payment Bonds.
Mandatory provision for all construction contracts exceeding $100,000:
A. Performance Bond. The required performance bond shall be in the form specified as follows:
| PERFORMANCE BOND | |
| |
| Principal | Business Address of Principal |
| |
Surety
| Obligee |
| a corporation of the State of _____________________ | STATE OF MARYLAND |
| and authorized to do business in the State of Maryland |
|
| |
Penal Sum of Bond (express in words and figures)
_________________________________________ | Date of Contract
_____________________, 20_____ |
Description of Contract
Contract Number: _________________________ | Date Bond Executed
_____________________, 20_____ |
| |
KNOW ALL BY THESE PRESENTS, That we, the Principal named above and Surety named above, are held and firmly bound unto the Obligee named above in the Penal Sum of this Performance Bond stated above, for the payment of which Penal Sum we bind ourselves, our heirs, executors, administrators, personal representatives, successors, and assigns, jointly and severally, firmly by these presents. However, where Surety is composed of corporations acting as co-sureties, we the co-sureties, bind ourselves, our successors and assigns, in such Penal Sum jointly and severally as well as severally only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each co-surety binds itself, jointly and severally with the Principal, for the payment of such sum as appears above its name below, but if no limit of liability is indicated, the limit of such liability shall be the full amount of the Penal Sum.
WHEREAS, Principal has entered into or will enter into a contract with the State of Maryland, by and through the Administration named above acting for the State of Maryland, which contract is described and dated as shown above, and incorporated herein by reference. The contract and all items incorporated into the contract, together with any and all changes, extensions of time, alterations, modifications, or additions to the contract or to the work to be performed thereunder or to the Plans, Specifications, and Special Provisions, or any of them, or to any other items incorporated into the contract shall hereinafter be referred as "the Contract."
WHEREAS, it is one of the conditions precedent to the final award of the Contract that these presents be executed.
NOW, THEREFORE, during the original term of said Contract, during any extensions thereto that may be granted by the Administration, and during the guarantee and warranty period, if any, required under the Contract, unless otherwise stated therein, this Performance Bond shall remain in full force and effect unless and until the following terms and conditions are met:
1. Principal shall well and truly perform the Contract; and
2. Principal and Surety shall comply with the terms and conditions in this Performance Bond.
Whenever Principal shall be declared by the Administration to be in default under the Contract, the Surety may, within 15 days after notice of default from the Administration, notify the Administration of its election to either promptly proceed to remedy the default or promptly proceed to complete the contract in accordance with and subject to its terms and conditions. In the event the Surety does not elect to exercise either of the above stated options, then the Administration thereupon shall have the remaining contract work completed, Surety to remain liable hereunder for all expenses of completion up to but not exceeding the penal sum stated above.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder or the Specifications accompanying the same shall in any way affect its obligation on this Performance Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the work or to the Specifications.
This Performance Bond shall be governed by and construed in accordance with the laws of the State of Maryland and any reference herein to Principal or Surety in the singular shall include all entities in the plural who or which are signatories under the Principal or Surety heading below.
IN WITNESS WHEREOF, Principal and Surety have set their hands and seals to this Performance Bond. If any individual is a signatory under the Principal heading below, then each such individual has signed below on his or her own behalf, has set forth below the name of the firm, if any, in whose name he or she is doing business, and has set forth below his or her title as a sole proprietor. If any partnership or joint venture is a signatory under the Principal heading below, then all members of each such partnership or joint venture have signed below, each member has set forth below the name of the partnership or joint venture, and each member has set forth below his or her title as a general partner, limited partner, or member of joint venture, whichever is applicable. If any corporation is a signatory under the Principal or Surety heading below, then each such corporation has caused the following: the corporation's name to be set forth below, a duly authorized representative of the corporation to affix below the corporation's seal and to attach hereto a notarized corporate resolution of power of attorney authorizing such action, and each such duly authorized representative to sign below and set forth below his or her title as a representative of the corporation. If any individual acts as a witness to any signature below, then each such individual has signed below and has set forth below his or her title as a witness. All of the above has been done as of the Date of Bond shown above.
| |
| In Presence of: | Individual Principal |
Witness:
__________________________________ as to |
_____________________________________(SEAL) |
| |
| In Presence of: | Co-Partnership Principal |
Witness:
______________________________________ |
_____________________________________(SEAL) |
| | (Name of Co-Partnership) |
| __________________________________ as to | By:__________________________________(SEAL) |
| __________________________________ as to | _____________________________________(SEAL) |
| __________________________________ as to | _____________________________________(SEAL) |
| |
| | Corporate Principal |
| | ______________________________________ |
| Attest: | (Name of Corporation) |
| | AFFIX |
| __________________________________ as to | By: _____________________________ CORPORATE |
| Corporate Secretary | President SEAL |
| |
| | ______________________________________ |
| | (Corporate Surety) |
| Attest: (SEAL) | By: _____________________________ SEAL |
| ______________________________________ | Title______________________________________ |
| Signature | |
| Bonding Agent's Name: ____________________ | ______________________________________ |
| | (Business Address of Surety) |
| Agent's Address __________________________ | |
| |
| | Approved as to legal form and sufficiency this |
| | ______ day of _____________ 20 __ |
| | ______________________________________ |
| | Asst. Attorney General |
B. Payment Bond. The required payment bond shall be in the form specified as follows:
| PAYMENT BOND | |
| |
| Principal | Business Address of Principal |
| |
| Surety | Obligee |
| a corporation of the State of _____________________ | STATE OF MARYLAND |
| and authorized to do business in the State of Maryland | |
Penal Sum of Bond (express in words and figures)
_________________________________________ | Date of Contract
_____________________, 20_____ |
Description of Contract
Contract Number: _________________________ | Date Bond Executed
_____________________, 20_____ |
| |
KNOW ALL MEN BY THESE PRESENTS, That we, the Principal named above and Surety named above, being authorized to do business in Maryland, and having business address as shown above, are held and firmly bound unto the Obligee named above, for the use and benefit of claimants as hereinafter defined, in the Penal Sum of this Payment Bond stated above, for the payment of which Penal Sum we bind ourselves, our heirs, executors, administrators, personal representatives, successors, and assigns, jointly and severally, firmly by these co-sureties, bind ourselves, our successors and assigns, in such Penal Sum jointly and severally as well as severally only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each co-surety binds itself, jointly and severally with the Principal, for the payment of such sum as appears above its name below, but if no limit of liability is indicated, the limit of such liability shall be the full amount of the Penal Sum.
WHEREAS, Principal has entered into or will enter into a contract with the State, by and through the Administration named above acting for the State of Maryland, which contract is described and dated as shown above, and incorporated herein by reference. The contract and all items incorporated into the contract, together with any and all changes, extensions of time, alterations, modifications, or additions to the contract or to the work to be performed thereunder or to the Plans, Specifications, and Special Provisions, or any of them, or to any other items incorporated into the contract shall hereinafter be referred to as the "Contract".
WHEREAS, it is one of the conditions precedent to the final award of the Contract that these presents be executed.
NOW THEREFORE, the condition of this obligation is such that if the Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and materials furnished, supplied and reasonably required for use in the performance of the Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect, subject to the following conditions:
1. A claimant is defined to be any and all of those persons supplying labor and materials (including lessors of the equipment to the extent of the fair market value thereof) to the Principal or its subcontractors and subcontractors in the prosecution of the work provided for in the Contract, entitled to the protection provided by Section 9-113 of the Real Property Article of the Annotated Code of Maryland, as from time to time amended.
2. The above named Principal and Surety hereby jointly and severally agree with the Obligee that every claimant as herein defined, who has not been
paid in full may, pursuant to and when in compliance with the provisions of the aforesaid Section 9-113, sue on this Bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant and have execution thereon. The Obligee shall not be liable for the payment of any costs or expenses of any such suit.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the work to be performed thereunder or the Specifications accompanying the same shall in any way affect its obligation on this Payment Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the work or to the Specifications.
This Payment Bond shall be governed by and construed in accordance with the laws of the State of Maryland and any reference herein to Principal or Surety in the singular shall include all entities in the plural who or which are signatories under the Principal or Surety heading below.
IN WITNESS WHEREOF, Principal and Surety have set their hands and seals to this Payment Bond. If any individual is a signatory under the Principal heading below, then each such individual has signed below on his or her own behalf, has set forth below the name of the firm, if any, in whose name he or she is doing business, and has set forth below his or her title as a sole proprietor. If any partnership or joint venture is a signatory under the Principal heading below, then all members of each such partnership or joint venture have signed below, each member has set forth below the name of the partnership or joint venture, and each member has set forth below his or her title as a general partner, limited partner, or member of joint venture, whichever is applicable. If any corporation is a signatory under the Principal or Surety heading below, then each such corporation has caused the following: the corporation's name to be set forth below, a duly authorized representative of the corporation to affix below the corporation's seal and to attach hereto a notarized corporate resolution of power of attorney authorizing such action, and each such duly authorized representative to sign below and set forth below his or her title as a representative of the corporation. If any individual acts as a witness to any signature below, then each such individual has signed below and has set forth below his or her title as a witness. All of the above has been done as of the Date of Bond shown above.
| |
| In Presence of: | Individual Principal |
Witness:
__________________________________ as to |
_____________________________________(SEAL) |
| |
| In Presence of: | Co-Partnership Principal |
| Witness: |
_____________________________________(SEAL) |
| | (Name of Co-Partnership) |
| __________________________________ as to | By:__________________________________(SEAL) |
| __________________________________ as to | _____________________________________(SEAL) |
| __________________________________ as to | _____________________________________(SEAL) |
| |
| | Corporate Principal |
| | ______________________________________ |
| Attest: | (Name of Corporation) |
| | AFFIX |
| __________________________________ | By: _____________________________ CORPORATE |
| Corporate Secretary | President SEAL |
| |
| | ______________________________________ |
| | (Corporate Surety) |
| Attest: (SEAL) | By: _____________________________ SEAL |
| ______________________________________ | Title______________________________________ |
| Signature | |
| Bonding Agent's Name: ____________________ | ______________________________________ |
| | (Business Address of Surety) |
| Agent's Address __________________________ | |
| |
| | Approved as to legal form and sufficiency this |
| | ______ day of _____________ 20 __ |
| | ______________________________________ |
| | Asst. Attorney General |
21.07.03 Mandatory Terms and Conditions for Purchase Orders Over $50,000
Authority: Election Law Article, §§14-101—14-108; General Provisions Article, §§5-502—5-503; State Finance and Procurement Article, §§12-101, 13-217—13-219, 13-221, 15-226, 16-202, 17-401, and 17-402; Annotated Code of Maryland; Ch. 630, Acts of 2017
.06 Nondiscrimination in Employment.
“The Contractor agrees not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex,
sexual orientation, gender identity, marital status, national origin, ancestry, or physical or mental disability of a qualified individual with a disability and to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause."
.26 Commercial Nondiscrimination Clause.
A. The following provision is mandatory for all State contracts: “As a condition of entering into this Agreement, Contractor represents and warrants that it will comply with the State's Commercial Nondiscrimination Policy, as described under State Finance and Procurement Article, Title 19, Annotated Code of Maryland. As part of this compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation,
gender identity, or disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that this clause does not prohibit or limit lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. Contractor understands that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party."
B.—C (text unchanged)
.27 Prompt Payment of Subcontractors.
A. This contract and all subcontracts issued under this contract at any tier are subject to the provisions of State Finance and Procurement Article, § 15-226, Annotated Code of Maryland, and COMAR 21.10.08. In §§ A--D of this regulation, the terms “undisputed amount", “prime contractor", “contractor", [and] “subcontractor,"
and “supplier" have the meanings stated in COMAR 21.10.08.01.
B. A contractor shall promptly pay its subcontractors
or suppliers an undisputed amount to which a subcontractor
or supplier is entitled for work performed under this contract within 10 days after the contractor receives a progress payment or final payment for work under this contract.
C. If a contractor fails to make payment within the period prescribed in § B of this regulation, a subcontractor
or supplier may request a remedy in accordance with COMAR 21.10.08.
D. (text unchanged)
21.07.04 Prohibited Provisions
Authority: State Finance and Procurement Article, §2-901, Annotated Code of Maryland
.01 Definitions.
A. In this Chapter, “State Contract" means any agreement entered into by the State.
B. This section does not apply to a State contract relating to the purchase, redevelopment, or operation of a racing facility or training facility site as those terms are defined under Economic Development Article, §10–601, Annotated Code of Maryland.
02. Contract Prohibitions.
A. Except as required by State or federal law, a State contract may not include the following:
(1) A provision that requires the State to indemnify, defend, or hold harmless another person without an appropriation of State funds for that purpose;
(2) A provision by which the state agrees to binding arbitration or any other binding extrajudicial dispute resolution process;
(3) A provision that names a jurisdiction or venue for any action or dispute against the state other than a court of proper jurisdiction in the State;
(4) a provision that requires the state to agree to limit the liability for any direct loss to the State for bodily injury, death, or damage to property of the State caused by the negligence, intentional or willful misconduct, fraudulent act, recklessness, or other tortious conduct of a person or a person's employees or agents or a provision that would otherwise impose an indemnification obligation on the State;
(5) A provision that requires the state to be bound by a term or condition that:
(a) is unknown to the state at the time of signing a contract;
(b) may be unilaterally changed by the other party; or
(c) is electronically accepted by a state employee without authority;
(6) A provision that provides for a person other than the Attorney General of Maryland to serve as legal counsel for the State, unless provided under State Government Article, §6–106, Annotated Code of Maryland;
(7) A provision that is inconsistent with the State's obligations under General Provisions Article, §§3 or 4, Annotated Code of Maryland;
(8) A provision prohibited under State Finance and Procurement Article, §7–237, Annotated Code of Maryland;
(9) A provision for automatic renewal that obligates the State to allocate funding in subsequent fiscal years; or
(10) A provision that limits the State's ability to recover the cost of a replacement contractor.
B. If a State contract contains a provision listed under §A. of this regulation, the provision is void from the beginning and the contract containing that provision shall be enforceable as if it did not contain the provision.
C. A State contract that contains a provision listed under §A of this regulation shall be governed by and construed in accordance with State law, notwithstanding any term or condition to the contrary in the contract.
Subtitle 10 ADMINISTRATIVE AND CIVIL REMEDIES21.10.02
ProtestsAuthority: State Finance and Procurement Article, §§12-101 and 15-201—15-223, Annotated Code of Maryland E. (text unchanged)
.07 Appeal.
A. A contractor or a subcontractor
or supplier may appeal a decision under Regulation .06C of this chapter to the procurement officer.
B. (text unchanged)
.08 Decision.
A. An act, failure to act, or decision of a procurement officer or a representative of a unit, concerning a payment dispute between a contractor and subcontractor
or supplier under this chapter, may not:
(1) Affect the rights of the contracting parties under any other provision of law;
(2) Be used as evidence on the merits of a dispute between the unit and the contractor or the contractor and the subcontractor
or supplier in any other proceeding; or
(3) Result in liability or prejudice the rights of the unit or a prime contractor that acts as a representative of a unit under Regulation .06C(3) of this chapter.
B. (text unchanged)
Subtitle 11 SOCIOECONOMIC POLICIES
21.11.01 Small Business Procurements
Authority: State Finance and Procurement Article, §§12-101, 14-201—14-208, and 14-501—14-505, Annotated Code of Maryland
.01 Definitions.
A. In this chapter, the following words have the meanings indicated.
B. Terms Defined.
(1) “Certified small business"
(“CSB") means a business, other than a nonprofit business, that:
(a) Is certified by the Governor's Office of Small, Minority, and Women Business Affairs pursuant to regulations adopted by that Department; and
(b) Meets the criteria for a small business as defined under [COMAR 21.01.02.01B(80)]
COMAR 21.01.02.01B.
(2) “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.
(3) “Disabled-veteran-owned small business" means a small business as defined under [COMAR 21.01.02.01B(80)]
COMAR 21.01.02.01B that is at least 51 percent owned and controlled by one or more individuals who are disabled veterans.
(4) “Economically disadvantaged individual" means an individual as defined in COMAR 21.11.03.03.B.
(4)(5) “Veteran" means a veteran as defined in 38 U.S.C. § 101(2) who is domiciled in Maryland.
(5)(6) “Veteran-owned small business" means a small business as defined under [COMAR 21.01.02.01B(80)]
COMAR 21.01.02.01B that is at least 51 percent owned and controlled by one or more individuals who are veterans.
(7) “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.
.02 Small Business Procurement Programs.
A. (text unchanged)
B. The small business preference program specifically authorizes [the Department of General Services, the Department of Transportation, the University System of Maryland, and Morgan State University]
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.
C. (text unchanged)
.05 Small Business Preference Program.
A. Applicability. The small business preference program applies to procurements by [the Department of Transportation, the Department of General Services, the University System of Maryland, and Morgan State University]
a procuring unit.
B. Procedures.
(1) Designation of Small Business Preference Contracts. The [Secretaries of General Services and Transportation, the Chancellor of the University System of Maryland, and the President of Morgan State University]
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.
(2)—(4) (text unchanged)
[(5) Reporting. The Departments of Transportation and General Services, the University System of Maryland, and Morgan State University procuring units shall submit a report on the Small Business Preference Program annually as required under COMAR 21.13.01.03A.]
.06 Small Business Reserve Program.
A. (text unchanged)
B. Scope. To the extent practicable, each procurement unit shall structure its procurement procedures to achieve the result that a minimum of [15]
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.
C. (text unchanged)
D. Expenditures.
(1) 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 [15]
20 percent of the total expected expenditures under these contracts directly to certified small businesses.
(2) Included and Excluded Expenditures.
(a) 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.
(b) [Only those payments resulting from a procurement designated as a small business reserve procurement may be applied towards the procurement unit's overall small business reserve payment achievement.]
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.
(c) 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.
E—I. (text unchanged)
21.11.03 Minority Business Enterprise Policies
Authority: State Finance and Procurement Article, §§12-101 and 14-301--14-308, Annotated Code of Maryland
.03 Definitions.
A. In this chapter, the following words have the meanings indicated.
B. Terms Defined.
(1)—(5) (text unchanged)
(6) “Industry type" means the following procurement categories:
(a) Construction;
(b) Architectural and engineering services and other construction-related professional services;
(c) Maintenance;
(d) Information technology;
(e) Services; [and]
(f) Goods, supplies, and equipment[.]
; and
(g) Real property title insurance services, including commercial real property title insurance services.
(7) – (17) (text unchanged)
.17 Reporting.
A.—C. (text unchanged)
D. 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.
E.—G. (text unchanged)
21.11.05 Procurement from Maryland Correctional Enterprises, Blind Industries and Services of Maryland, and the Employment Works Program
Authority: 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
.04 Duties of the Pricing and Selection Committee for Preferred Providers.
The Pricing and Selection Committee for Preferred Providers shall:
A.—P. (text unchanged)
Q. 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; [and]
R. 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
(S). 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:
(1) the price of the needed supplies and services is at least 10% above market rates for similar supplies and services; or
(2) the time at which the needed supplies and services would be delivered does not meet the entity's needs.
.06 Responsibilities of Selling Entities.
Each selling entity shall:
A.—E. (text unchanged)
F. 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.
(1) 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.
(2) For the preceding fiscal year, Maryland Correctional Enterprises shall report the length of time between each order and delivery of supplies and services.
.08 Minority Business Status.
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. [Include
not include in its MBE procurements the annual dollar value of its contracts with:
(1) Blind Industries and Services of Maryland;
(2) Community service providers; and
(3) Individual-with-disability-owned businesses.]
A preferred provider as defined in State Finance and Procurement Article, §14-101(d), Annotated Code of Maryland;
B. [Exclude from its total annual procurements the annual dollar value of its contracts with Maryland Correctional Enterprises.]
A nonprofit entity in accordance with requirements mandated by State or federal law; or
C. 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.
Subtitle 13 PROCUREMENT REPORTING REQUIREMENTS
21.13.01 Reporting Requirements
Authority: Election Law Article, §§14-101 and 14-107; State Finance and Procurement Article, §§12-101, 13-207, 14-305, 14-505, 15-110, 15-111, and 17-104; Annotated Code of Maryland
.03 Reports of the Small Business Reserve Program.
A. (text unchanged)
B. Each procurement unit shall submit a report on the small business reserve program to the Governor's Office of Small, Minority & Women Business Affairs within 90 days after the end of each fiscal year, in a format determined by the Governor's Office of Small, Minority & Women Business Affairs, that includes at a minimum:
(1) The total number and the dollar value of [payments]
awards the unit made to certified small businesses under contracts designated as small business reserve contracts;
(2) The total number and the dollar value of [payments]
awards the unit made to certified small businesses under contracts not designated as small business reserve contracts, including purchase card [payments] procurements;
(3) The total dollar value of [payments]
awards the unit made under procurement contracts; and
(4) Other information required by the Governor's Office of Small, Minority & Women Business Affairs.
C. (text unchanged)
D. On or before December 1 each year, the certification agency designated under State Finance & Procurement Article, §14-303b, Annotated Code of Maryland, in consultation with the Governor's Office of Small, Minority & Women Business Affairs, shall submit to the Board of Public Works and, subject to State Government Article, §2–1257, Annotated Code of Maryland, to the Legislative Policy Committee a report on:
(1) the status of the outreach program required under State Finance and Procurement Article, §14-504.1, Annotated Code of Maryland; and
(2) the total number and dollar value of awards made to small businesses owned by economically disadvantaged individuals under designated small business reserve contracts.
Title 21STATE PROCUREMENT
REGULATIONSSubtitle 11 SOCIOECONOMIC POLICIES21.11.03 Minority Business Enterprise PoliciesAuthority: State Finance and Procurement Article, §§12-101 and 14-301--14-308, Annotated Code of Maryland
.16 [Minority Business Enterprise Advisory Committee
A. There shall be established within the Department of Transportation a Minority Business Enterprise Advisory Committee which shall make recommendations to the Secretary of Transportation concerning certification, expansion of services, and nonrenewals of minority business enterprises, and shall advise the Secretary of Transportation on matters related to the Minority Business Enterprise Program.
B. The Minority Business Enterprise Advisory Committee shall consist of 12 members including:
(1) A chairman and two additional members from the Department of Transportation, designated by the Secretary of Transportation;
(2) One member from the Department of General Services, designated by the Secretary of General Services;
(3) One member from the University System of Maryland, designated by the Chancellor;
(4) One member from the Department of Budget and Management, designated by the Secretary of Budget and Management;
(5) One member from the Department of Public Safety and Correctional Services, designated by the Secretary of Public Safety and Correctional Services;
(6) One member from the Governor's Office of Small, Minority & Women Business Affairs, designated by the Special Secretary; and
(7) Four members representing the general public, designated by the Secretary of Transportation.
C. Each committee member shall serve at the pleasure of the designating authority.]
Repealed.
