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.
Proposed Regulations
Following consideration by the Board on January 2, 2019, the following proposed regulations were published in the Maryland Register on April 12, 2019.
The April 12, 2019 edition of Maryland Register is available here.
Questions regarding this proposal may be directed to Gabriel Gnall, Procurement Advisor, at gabriel.gnall@maryland.gov
Title 21 - STATE PROCUREMENT REGULATIONS
Notice of Proposed Action [19-068-P]
The Board of Public Works proposes to:
(1) Amend Regulation .01 under COMAR 21.01.02 Terminology;
(2) Amend Regulation .05 under COMAR 21.02.01 Board of Public Works;
(3) Amend Regulation .04 and adopt new Regulation .04-1 under COMAR 21.05.01 General Provisions;
(4) Amend Regulation .08 under COMAR 21.05.02 Procurement by Competitive Sealed Bidding;
(5) Amend Regulation .03 under COMAR 21.05.12 Procurement of Human, Social, Cultural, and Educational Services;
(6) Amend Regulation .14 and adopt new Regulations .27 and .28 under COMAR 21.07.01 Mandatory Contract Provisions—All Contracts (except as provided under COMAR 21.05.07, 21.07.02, and 21.07.03);
(7) Amend Regulations .02—.05 and .06—.09 and adopt new Regulation .11 under COMAR 21.07.02 Mandatory Construction Contract Clauses;
(8) Amend Regulations .02 and .05 under COMAR 21.11.01 Small Business Procurements;
(9) Amend Regulations .09—.11 under COMAR 21.11.03 Minority Business Enterprise Policies;
(10) Amend Regulation .04 under COMAR 21.11.13 Veteran-Owned Small Business Enterprises; and
(11) Amend Regulation .03 under COMAR 21.13.01 Reporting Requirements.
This action was considered at the Board of Public Works meeting held on January 2, 2019.
Statement of Purpose
The purpose of this action is to update COMAR Title 21. Revisions include corrections to outdated or invalid terminology, references, and typographical errors; clarifications of the scope or requirements of specific regulations to prevent inconsistent interpretations or applications of those regulations; amendments to align regulations with recent statutory changes; and amendments to the Minority Business Enterprise (MBE) regulations that take into consideration recent decisions by the Maryland State Board of Contract Appeals.
Comparison to Federal Standards
There is no corresponding federal standard to this proposed action.
Estimate of Economic Impact
The proposed action has no economic impact.
Economic Impact on Small Businesses
The proposed action has minimal or no economic impact on small businesses.
Impact on Individuals with Disabilities
The proposed action has no impact on individuals with disabilities.
Opportunity for Public Comment
Comments may be sent to Gabriel Gnall, Procurement Advisor, Board of Public Works, 80 Calvert Street, Annapolis, MD 21401, or call 410-260-7335, or email to gabriel.gnall@maryland.gov, or fax to 410-974-5240. Comments will be accepted through May 13, 2019. A public hearing has not been scheduled.
Subtitle 01 GENERAL PROVISIONS
21.01.02 Terminology
Authority: State Finance and Procurement Article, §§11-101 and 12-101, Annotated Code of Maryland
.01 Definitions.
A. (text unchanged)
B. Terms Defined.
(1)—(79) (text unchanged)
(80) “Small business” means a business[, other than a broker, which meets the following criteria:
(a) It is independently owned and operated;
(b) It is not a subsidiary of another firm;
(c) It is not dominant in its field of operation;
(d) With respect to employees, either:
(i) Its wholesale operations did not employ more than 50 persons in its most recently completed 3 fiscal years;
(ii) Its retail operations did not employ more than 25 persons in its most recently completed 3 fiscal years;
(iii) Its manufacturing operations did not employ more than 100 persons in its most recently completed 3 fiscal years;
(iv) Its service operations did not employ more than 100 persons in its most recently completed 3 fiscal years;
(v) Its construction operations did not employ more than 50 persons in its most recently completed 3 fiscal years; and
(vi) Its architectural and engineering services did not employ more than 100 persons in its most recently completed 3 fiscal years; and
(e) With respect to gross sales:
(i) The gross sales of its wholesale operations did not exceed an average of $4,000,000 in its most recently completed 3 fiscal years;
(ii) The gross sales of its retail operations did not exceed an average of $3,000,000 in its most recently completed 3 fiscal years;
(iii) The gross sales of its manufacturing operations did not exceed an average of $2,000,000 in its most recently completed 3 fiscal years;
(iv) The gross sales of its service operations did not exceed an average of $10,000,000 in its most recently completed 3 fiscal years;
(v) The gross sales of its construction operations did not exceed an average of $7,000,000 in its most recently completed 3 fiscal years; and
(vi) The gross sales of its architectural and engineering operations did not exceed an average of $4,500,000 in its most recently completed 3 fiscal years] as defined in State Finance and Procurement Article, §14-501(b), Annotated Code of Maryland.
(81)—(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
.05 Review and Approval of the Award of Procurement Contracts.
A. (text unchanged)
B. Procurement Agency Activity Reports (PAAR).
(1) The departments[,] and the Department of Public Safety and Correctional Services[, and the Maryland Environmental Service (for those specific projects as may be authorized from time to time by the General Assembly and to the extent so authorized)] shall prepare and submit to the Board Procurement Agency Activity Reports (PAAR) covering all procurement contracts in excess of $50,000, except contracts for the purchase of commodities and supplies, made pursuant to this chapter during the previous calendar month or not previously reported.
(2) In addition, a PAAR shall include a report of:
(a) All contract modifications and option renewals greater than $50,000, but less than the amount requiring Board approval, approved by the departments[,] and the Department of Public Safety and Correctional Services[, and the Maryland Environmental Service (for those specific projects as may be authorized from time to time by the General Assembly and to the extent so authorized)] pursuant to this chapter;
(b) All cancellations of solicitations or rejections of all bids or proposals approved by the departments[,] and the Department of Public Safety and Correctional Services[, or the Maryland Environmental Service] pursuant to COMAR 21.06.02; and
(c) (text unchanged)
(3) The PAAR of the Department of General Services[,] and the Department of Public Safety and Correctional Services[, and the Maryland Environmental Service (for those specific projects as may be authorized from time to time by the General Assembly and to the extent so authorized)] shall include a summary report of those invoices approved pursuant to this chapter which did not result from competitive bidding.
(4)—(5) (text unchanged)
C. (text unchanged)
Subtitle 05 PROCUREMENT METHODS AND PROJECT DELIVERY METHODS
21.05.01 General Provisions
Authority: State Finance and Procurement Article, §§11-201, 11-205, 12-101, 13-102, 13-110, 13-202, and 14-401, Annotated Code of Maryland; Ch. 216, Acts of 2009; Chs. 633 and 624, Acts of 2018
.04 Reciprocal Preferences—Supplies or Services.
A. Definitions.
(1)—(3) (text unchanged)
(4) “Services” means services, [architectural services,] construction-related services, [engineering services,] or energy performance contract services.
B. Conditions. A procurement agency may give a preference to a resident business if:
(1) (text unchanged)
(2) A responsible bidder[,] or offeror [, or provider of architectural or engineering services] whose principal office or principal base of operations is in another state submits the lowest responsive bid[,] or the most advantageous offer[, or a qualification statement or a technical proposal concerning architectural or engineering services];
(3)—(4) (text unchanged)
C. (text unchanged)
.04-1 Reciprocal Preferences—Architectural or Engineering Services.
A. Definitions.
(1) In this regulation, the following terms have the meanings indicated.
(2) “Nonresident firm” means a business entity that:
(a) Has one office that is a principal office for the entity and is not located in the State; or
(b) For an entity that has offices in multiple states, has not had a principal office located in the State for at least 6 months immediately before the date of a request for proposals.
(3) “Preference” means:
(a) A percentage preference;
(b) An employee residency requirement; or
(c) Any other law, policy, or practice that favors a resident-firm offeror over a nonresident-firm offeror.
(4) Principal Office.
(a) “Principal office” means a primary place of business that is staffed on a regular basis to provide the services that are requested by a unit in a request for proposals.
(b) “Principal office” does not include a satellite office or an office that is minimally staffed and is not open on a regular basis to provide the services that are requested by a unit in a request for proposals.
(5) “Request for proposals” means a request for architectural services or engineering services that is issued in accordance with State Finance and Procurement Article, §13-112, Annotated Code of Maryland.
(6) Resident Firm.
(a) “Resident firm” means a business entity that is licensed or otherwise authorized to provide architectural or engineering services in the State, and:
(i) For an entity that has one office, the office is located in the State; or
(ii) For an entity that has offices in multiple states, has had a principal office located in the State for at least 6 months immediately before the date of a request for proposals.
(b) “Resident firm” includes a joint venture that was entered into before the date of the request for proposals for which the joint venture submits a proposal and includes one party that holds at least a 51 percent interest in the joint venture and meets the definition in §A(6)(a) of this regulation.
B. Conditions. A procurement agency shall apply a preference to a proposal from a resident firm if:
(1) A nonresident firm is a responsible offeror determined to be the most qualified person to submit a proposal in accordance with State Finance and Procurement Article, §13-112, Annotated Code of Maryland, and the state in which the principal office of the nonresident firm is located has a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland;
(2) A resident firm is a responsible offeror that certifies it meets the requirements for a resident firm at the same time that it submits the proposal for which the preference would apply; and
(3) The nonresident firm’s state’s preference does not conflict with a federal law or grant affecting the procurement contract.
C. Application.
(1) At the request of a unit, a nonresident firm shall provide the following documentation for the state in which the principal office of the nonresident firm is located:
(a) A copy of the current statute, resolution, policy, procedure, or executive order that establishes a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland; or
(b) A certification that the other state does not have a preference that favors an offeror from that state to the disadvantage of an offeror from the State of Maryland.
(2) If a resident firm qualifies for a preference established under this section and for another preference established under State Finance and Procurement Article, Division II, Annotated Code of Maryland, the unit:
(a) May not apply more than one preference to the proposal from the resident firm; and
(b) Shall apply the preference to the proposal from the resident firm that is most advantageous to the resident firm.
(3) If, when making a determination of qualification under a qualification-based selection, a unit determines that a proposal from a resident firm and a proposal from a nonresident firm are equally qualified, the unit may apply a preference to the proposal from the resident firm.
(4) A unit may not apply a preference to a proposal submitted by a resident firm if the resident firm does not submit the certification required under §B(2) of this regulation at the same time that it submits the proposal.
21.05.02 Procurement by Competitive Sealed Bidding
Authority: State Finance and Procurement Article, §§12-101, 13-103, 13-210, and 14-301—14-308, Annotated Code of Maryland; Chs. 586 and 587, Acts of 2017
.08 Amendments to Invitations for Bids.
A.—B. (text unchanged)
C. Timeliness. Amendments shall be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date for receipt of bids does not permit preparation, the time shall be increased to the extent possible in the amendment or, if necessary, by [telegram] electronic communication or telephone and confirmed in the amendment.
21.05.12 Procurement of Human, Social, Cultural, and Educational Services
Authority: State Finance and Procurement Article, §§12-101, 13-104, 13-106, 13-108, 13-109, and 13-202, Annotated Code of Maryland
.03 Procurement Methods.
A.—B. (text unchanged)
C. Human, social, cultural, and educational services of [$25,000] $50,000 or less may be procured in accordance with the small procurement method, COMAR 21.05.07.
D.—F. (text unchanged)
Subtitle 07 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, 16-202, 17-401,17-402, and 19-114; Annotated Code of Maryland; Chs. 588, 589, and 630, Acts of 2017
.14 Liquidated Damages.
Mandatory provision for:
A. [all] All contracts with certified MBE participation goals in accordance with COMAR 21.11.03.10E; and
B. [any] Any other contracts deemed appropriate by the procurement officer in consultation with the Office of the Attorney General.
.27 Performance and Payment Bonds.
Mandatory provision for contracts exceeding $100,000 with surety bond requirements:
A. Performance Bond. The required performance bond shall be in the form specified as follows:
PERFORMANCE BOND
Questions regarding this proposal may be directed to Gabriel Gnall, Procurement Advisor, at gabriel.gnall@maryland.gov