Pending Regulations

State Government Article §10-112.1 requires all proposed regulations be posted on an agencies' website within 3 days of the Maryland Register publication date.  


 The following proposal was approved by the Board of Public Works on April 27, 2022.

Title 21

STATE PROCUREMENT REGULATIONS

Subtitle 01 GENERAL PROVISIONS

21.01.02 Terminology

Authority: State Finance and Procurement Article, §§11-101 [and], 12-101, and 13-108, Annotated Code of Maryland

.01 Definitions.

A. (text unchanged)

B. Terms Defined.

(1) – (35) (text unchanged)

(36) "Emergency" means [a sudden and unexpected occurrence or condition which agency management reasonably could not foresee that requires an action to avoid or to mitigate serious damage to public health, safety, or welfare] an occurrence or condition that creates an immediate and serious need for services, materials, or supplies that cannot be met through normal procurement methods and are required to avoid or mitigate serious damage to public health, safety, or welfare.

(36-1) – (98) (text unchanged)

 

Subtitle 02 STATE PROCUREMENT ORGANIZATION

21.02.01 Board of Public Works

Authority: Education Article, §§14-204, 14-205, and 14-405; State Finance and Procurement Article, §§12-101, 12-107, 12-202, 12-203, 12-204, 13-108, and 15-112; Annotated Code of Maryland; Ch. 471, Acts of 1991; Ch. 608, Acts of 1999; Ch. 581, Acts of 2016; Ch. 4, Acts of 2021

.05 Review and Approval of the Award of Procurement Contracts.

A. Action Agendas.

(1) – (2) (text unchanged)

(3) The procurement agencies shall:

(a) (text unchanged)

(b) Pursuant to COMAR 21.05.06.03, submit each expedited item as an appendix to the [Department of Transportation's] appropriate control agency’s action agenda whenever [the Maryland Port Commission or the Maryland Aviation Administration] a procurement agency requests the Board's approval to make an expedited procurement, and whenever the outcome of a previously approved expedited procurement is being reported.

(4) – (7) (text unchanged)

B. – C. (text unchanged)

 

Subtitle 05 PROCUREMENT METHODS AND PROJECT DELIVERY METHODS

21.05.06 Emergency and Expedited Procurements

Authority: State Finance and Procurement Article, §§12-101 and 13-108; Public Safety Article, §14-117; Annotated Code of Maryland; Ch, 4, Acts of 2021

.02 Emergency Procurements.

A. (text unchanged)

B. Authority.

(1) – (2) (text unchanged)

(3) Except when delaying a procurement by up to 48 hours would likely result in imminent harm, after obtaining the approval of the head of the unit and before making an emergency procurement, the procurement officer shall obtain the approval of the use of emergency procurement procedures from the Chief Procurement Officer, or the Chief Procurement Officer’s designee.  Within 48 hours after receiving a request to use emergency procurement procedures, the Chief Procurement Officer or designee shall approve or disapprove the request.  If the Chief Procurement Officer or designee does not approve or disapprove the request to use emergency procurement procedures within 48 hours after receiving the request, the request shall be considered to be approved.

C. Source Selection and Contract Award.

(1) The procedure used shall assure that the required items are procured in time to meet the emergency. Given this constraint, such competition as is possible and practicable shall be obtained, including by making reasonable efforts to solicit at least three oral quotes.

(2) Before awarding an emergency procurement contract to a prospective contractor, the procurement officer shall evaluate the contractor’s ability to perform the requirements of the contract based on:

(a) The length of time the contractor has been in business;

(b) The contractor’s level of experience providing the types and amounts of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services required under the contract; and

(c) The contractor’s history of successful procurement contracts with the state and other jurisdictions.

(3) The procurement officer shall execute a written contract with the successful contractor which includes the terms of the emergency procurement and provisions addressing the contractor’s ability to perform the requirements of the contract within the emergency time frame.

D. Record and Review of Emergency Procurement.

(1) Notice of award shall be published in eMaryland Marketplace by the procurement agency on the day of execution and approval of the contract, or as soon as practicable thereafter, but not more than 30 days after the execution and approval of the contract.

(2) A record of each emergency procurement shall be made within seven days of award and shall set forth:

(a) – (i) (text unchanged)

(j) The documented approval of the Chief Procurement Officer or designee when applicable, as required by §B(3) of this regulation.

(3) An action agenda item, including the information required by [§D(2)(a)-(h)] §D(2)(a)-(j) of this regulation, shall be forwarded by the procurement agency to the Board and to the appropriate control agency within [45] 15 days of emergency contract award or emergency modification in accordance with COMAR 21.02.01.05A(3)(a).

(4) – (5) (text unchanged)

(6) If supplies or commodities procured under an emergency procurement contract are not delivered and used within one month after the date the contract is awarded, the procuring unit shall:

(a) Prepare a report describing the delivery and use status of supplies and commodities procured under the contract at least once per month until all supplies and commodities have been delivered and used; and

(b) Submit the reports prepared under §D(6)(a) of this regulation to the Board, the appropriate control agency, and, in accordance with §2-1257 of the State Government Article, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee.

E. Emergency Procurement Contracts Valued $1,000,000 or More.

(1) In advance of or concurrent with the execution of an emergency procurement contract that is valued $1,000,000 or more, a unit may not pay an amount that exceeds $2,000,000, plus 30% of the contract value in excess of $2,000,000.

(2) Unless authorized by the Board, the unit may not make any additional payment under the contract until at least 30 days after the execution of the contract.

(3) Not later than 7 days after awarding an emergency procurement that is valued $1,000,000 or more, a unit shall submit a copy of the contract to the Board with an action agenda item, including the information required by §D(2)(a)-(j) of this regulation, in accordance with COMAR 21.02.01.05A(3)(a).

(4) The Board may review an emergency procurement contract submitted under §E(3) of this regulation at a regularly scheduled meeting of the Board or at an emergency meeting called for that purpose, and direct the unit or the appropriate control agency to take any action, including canceling or rescinding the contract, that the Board deems appropriate.

F. State of Emergency

(1) When the Governor or the head of a unit authorizes an emergency procurement during a state of emergency in order to prepare for or address the state of emergency, the Governor or the head of the unit shall provide written notice to the Legislative Policy Committee within 72 hours after the earlier of the execution of the contract or the expenditure of funds. 

(2) The notice required by §F(1) of this regulation shall include:

(a) The name, business address, and, if applicable, website address of the awarded vendor;

(b) The dollar value of the contract;

(c) A description of how the funds are to be used; and

(d) An explanation of the reasons the procurement is necessary to prepare for or address the emergency.

(3) After an emergency procurement contract is executed in order to prepare for or address the state of emergency:

(a) If requested by the Legislative Policy Committee, the Governor or head of the unit shall provide a copy of the contract to the Legislative Policy Committee; and

(b) The Legislative Policy Committee may request that the Office of Legislative Audits conduct an audit of the emergency procurement.

.03 Expedited Procurements.

A. Authority.

(1) [The Maryland Port Commission or the Maryland Aviation Administration] A procurement officer may make an expedited procurement when the following conditions have been met:

(a) – (b) (text unchanged)

(2) The Board may approve expedited procurements on a project-by-project or contract-by-contract basis. It may approve or deny a request by the [Maryland Port Commission or the Maryland Aviation Administration] procurement agency to make an expedited procurement and may stipulate any conditions or limitations on the procurement which it deems appropriate.

B. – C. (text unchanged)

D. Approval Procedure.

(1) The [Maryland Port Commission or the Maryland Aviation Administration] procurement agency shall obtain the Board's approval before using the expedited procurement method.

(2) The [Maryland Port Commission or the Maryland Aviation Administration] procurement agency shall request the Board's approval of an expedited procurement in accordance with COMAR 21.02.01.05A(3)(b). The approval request shall include:

(a) The determination required by §C of this regulation, including the documented approval of the agency head or designee as required by §A(1)(a) of this regulation.

(b) (text unchanged)

E. Record of Expedited Procurements.

(1) – (2) (text unchanged)

(3) The record in §E(2) of this regulation shall be reported to the Board within 30 days of contract award as an appendix to the [Department of Transportation's] appropriate control agency’s regular action agenda.

 

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; Ch. 119, Acts of 2016

.06 Small Business Reserve Program.

A. – 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 [10] 15 percent of the total expected expenditures under these contracts directly to certified small businesses.

(2) (text unchanged)

E. – F. (text unchanged)

G. Before awarding a contract under a [contract] procurement designated as a small business reserve procurement, the procurement officer shall verify that the apparent awardee is certified by the Governor's Office of Small, Minority, and Women Business Affairs as a small business. A procurement contract award under a small business reserve procurement may not be made to a business that has not been certified.

H. – 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; Chs. 268, 283, 293, 328, and 715, Acts of 2009; Ch. 619, Acts of 2010; Chs. 252, 253, and 254, Acts of 2011; Ch. 154, Acts of 2012; Ch. 415, Acts of 2015; Ch. 313, Acts of 2016; Chs. 340 and 438, Acts of 2017; Chs. 335, 336, 481, and 482, Acts of 2018; Ch. 316, Acts of 2019; Ch. 322, Acts of 2021

.12-1 Counting Minority Business Enterprise Participation.

A. — E. (text unchanged)

F. Counting Participation of a Certified Business Owned by a Woman of an Ethnic or Racial Group for Subgoals. A certified MBE may be counted [as a] to meet a subgoal for woman-owned [business] businesses, a subgoal for [business] businesses owned by a member of an ethnic group or racial group, or both, if the business has been certified in both subgoal categories.  The participation of a MBE certified in both categories may only be counted once for purposes of meeting the overall MBE contract goal.

 

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; Ch. 6, Acts of 2019; Ch. 4, Acts of 2021

.01 Sole Source, Emergency, and Expedited Procurement Reports.

A. (text unchanged)

B. Annual Report of Sole Source, Emergency, and Expedited Procurements. Each [department] Department shall prepare and submit an annual written report within [90] 60 days following the close of the fiscal year to the [Governor and, subject to State Government Article, §2-1246, Annotated Code of Maryland, to the General Assembly,] Chief Procurement Officer of contracts awarded during the preceding fiscal year under sole source, emergency, or expedited procurement procedures (COMAR 21.05.05 and 21.05.06), whether the procurement was conducted by the Department or subject to review by the Department. The report shall, at a minimum:

(1) Name each contractor;

(2) State the amount and type of each contract;

(3) Describe the supplies, services, maintenance, construction, or construction-related services procured or real property leased; [and]

(4) Describe the basis for the award[.];

(5) Identify the department of agency that awarded the contract;

(6) Identify any agency official required to authorize the contract for award;

(7) State the award date of the procurement contract and the final date of the contract term;

(8) State the date the contract award notice was posted to eMaryland Marketplace; and

(9) For procurements awarded under the Emergency Procurement method:

 (a) State the number of days between the agency declaration of an emergency procurement and the contract award date;

(b) State the date of the emergency declaration; and

(c) The date the award was reported to the Board.

C. The Chief Procurement Officer shall submit to the Governor, the Legislative Policy Committee, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee a consolidated report that includes each report required under §B of this regulation within 90 days following the close of the fiscal year.  A report to the General Assembly or a committee of the General Assembly under this regulation is subject to State Government Article, §2-1257, Annotated Code of Maryland.

.02 Annual Report of Service Contracts Exceeding $100,000 in Value.

A. Each [department] Department shall prepare and submit an annual written report within [90] 60 days following the close of the fiscal year to the [Governor and, subject to State Government Article, §2-1246, Annotated Code of Maryland, to the General Assembly,] Chief Procurement Officer of contracts for services, construction-related services, architectural services, and engineering services that exceed $100,000 during the preceding fiscal year, whether the procurement was conducted by the Department or subject to review by the Department. The report shall, at a minimum:

[A.] (1) Name each contractor;

[B.] (2) State the amount and type of each contract; and

[C.] (3) Describe the work procured.

B. The Chief Procurement Officer shall submit to the Governor, the Legislative Policy Committee, the Senate Budget and Taxation Committee, the Senate Education, Health, and Environmental Affairs Committee, the House Appropriations Committee, the House Health and Government Operations Committee, and the Joint Audit and Evaluation Committee a consolidated report that includes each report required under §A of this regulation within 90 days following the close of the fiscal year.  A report to the General Assembly or a committee of the General Assembly under this regulation is subject to State Government Article, §2-1257, Annotated Code of Maryland.

.03 Reports of the Small Business Reserve Program.

[A. Each designated procurement unit shall submit a report on the operation and effectiveness of the small business reserve program to the Board of Public Works within 90 days after the end of each fiscal year. The format of the report shall be determined by the Board of Public Works.

B. Within 60 days after receipt of the reports required in §A of this regulation, the Board of Public Works shall compile the information and report to the Legislative Policy Committee subject to State Government Article, §2-1246, Annotated Code of Maryland.]

[C.] A. Each designated procurement unit shall submit an expenditure plan on the small business reserve program as set forth in COMAR 21.11.01.06D to the Governor's Office of Small, Minority & Women Business Affairs within 60 days after enactment of the annual budget bill by the General Assembly. The format of the expenditure plan shall be determined by the Governor's Office of Small, Minority & Women Business Affairs.

[D.] B. Each designated 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) – (4) (text unchanged)

[E.] C. By December 31 of each year, the Governor’s Office of Small, Minority & Women Business Affairs shall summarize the information required in §D of this regulation and report to the Board of Public Works and, subject to State Government Article, §2-1246, Annotated Code of Maryland, the Legislative Policy Committee.



Questions regarding the adoption of procurement regulations may be directed to Gabriel Gnall, Procurement Advisor, at gabriel.gnall@maryland.gov​



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