Md. Code Regs. 21.05.03.03

Current through Register Vol. 51, No. 21, October 18, 2024

Section 21.05.03.03 - Evaluation of Proposals, Negotiations and Award

A. Evaluation.

(1) The evaluation shall be based on the evaluation factors set forth in the request for proposals and developed from both the work statement and price.

(2) Technical proposals and price proposals shall be evaluated independently of each other.

(3) Economic Benefits Evaluation Factor.

(a) This subsection applies only to proposals that the procurement officer reasonably expects to exceed $50,000. When a point system is used in the evaluation of these proposals, up to 10 percent of the total allocable technical points may be awarded under an economic-benefits evaluation factor. If a point system is not used, an economic-benefits evaluation factor may be included in the technical evaluation factors and be ranked in its relative order of importance, as the procurement officer determines.

(b) Offerors may be asked to demonstrate in their proposals how the contract will benefit the Maryland economy. The economic-benefits evaluation factor may include consideration of such elements as:

(i) The offeror's intended procurements from Maryland subcontractors, suppliers, and joint venture partners;

(ii) The number of jobs generated for Maryland residents;

(iii) Tax revenues generated to Maryland and its political subdivisions;

(iv) The amount or percentage of subcontract dollars placed with Maryland small businesses and Maryland MBEs.

(c) Offerors may receive up to half of the total allocable technical points under an economic-benefits evaluation factor for other elements directly or indirectly attributable to the contract that contribute to the Maryland economy.

(4) Numerical rating systems may be used but are not required.

(5) Factors not specified in the request for proposals may not be considered.

(6) Initial evaluations may be conducted and recommendation for award made by an evaluation committee. Final evaluations, including evaluation of the recommendation of the evaluation committee, if any, shall be performed by the procurement officer and the agency head or designee.

B. Classification of Proposals.

(1) When more than one proposal has been received for a particular procurement, the procurement officer may initially classify the proposals as:

(a) Reasonably susceptible of being selected for award; or

(b) Not reasonably susceptible of being selected for award.

(2) Offerors judged by the procurement officer not to be responsible or offerors whose proposals are classified as not reasonably susceptible of being selected for award shall be so notified.

C. Discussions.

(1) The term "qualified offerors" includes only those responsible offerors that submitted proposals initially classified by the procurement officer as reasonably susceptible of being selected for award. The term does not include those offerors that submitted proposals not reasonably susceptible of being selected for award or that are not deemed responsible.

(2) Purposes of Discussions. Discussions are held to:

(a) Assure full understanding of the procurement agency's requirements and of the qualified offerors proposals and abilities to perform;

(b) Obtain the best price for the State; and

(c) Facilitate arrival at a contract that shall be most advantageous to the State, taking into consideration price and other relevant evaluation factors set forth in the request for proposals.

(3) Conduct of Discussions.

(a) General. Qualified offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions, negotiations, and clarification of proposals. The procurement officer shall establish procedures and schedules for conducting discussions. If discussions indicate a need for substantive clarification of or change in the request for proposals, the procurement officer shall amend the request to incorporate the clarification or change. Except as provided in §C(3)(b)(ii), below, disclosure to a competing offeror of any information derived from a proposal of, or from discussions with, another offeror is prohibited. Any oral clarifications of substance of a proposal shall be confirmed in writing by the offeror.

(b) Real Property Leases. In the procurement of real property leases:

(i) The procurement officer may limit discussions and negotiations to only those responsible offerors that submitted the three best proposals based upon the procurement officer's preliminary review, in accordance with the evaluation factors, of all proposals received in response to the request for proposals;

(ii) Discussions and negotiations may not result in the disclosure of any information derived from competing offerors except price and information related directly to price;

(iii) The procurement officer may establish a maximum fair market rental rate for each premises offered and, after price negotiation, may reject as unacceptable any proposal that exceeds the established maximum fair market rental rate; and

(iv) If no offers are received in response to the request for proposals, the procurement officer, with the approval of the agency head or designee, may solicit offers directly without republication of notice pursuant to Regulation .02B.

D. Best and Final Offers.

(1) General. When in the best interest of the State, the procurement officer may permit qualified offerors to revise their initial proposals by submitting best and final offers. The procurement officer shall establish a common date and time for the submission of best and final offers. The procurement officer may require more than one series of submissions of best and final offers and discussions if the agency head or designee makes a written determination that it is in the State's best interest to conduct additional discussions or change the procurement agency's requirements and require another submission of best and final offers. Otherwise, discussion of or changes in the best and final offers is not allowed before award except as provided in §D(2)(a), below. If more than one submission of best and final offers is requested, an offeror's immediate previous offer shall be construed as its best and final offer unless the offeror submits a timely notice of withdrawal or another best and final offer.

(2) Real Property Leases. In the procurement of real property leases:

(a) After best and final offers are evaluated and the apparently successful offeror determined, the procurement officer may conduct further discussions and negotiations with that offeror to permit the State to obtain the best lease terms, including price, conditions, and services, subject to the requirement that any modification of the apparently successful offer be in the best interest of the State; and

(b) If negotiations and best and final offers fail to result in lease terms comparable to market rental rates in the area in which the lease is required and if the apparently successful offeror refuses to accept a lease with terms comparable to the market rental rates as determined by the procurement officer, the procurement officer may solicit additional offers directly without republication of notice pursuant to Regulation .02B.

(3) Existing real property leases may be renewed in accordance with COMAR 21.05.05.

E. Confirmation of Proposal. When, before an award has been made, it appears from a review of a proposal that a mistake has been made, the offeror should be asked to confirm the proposal. If the offeror alleges a mistake, the procedures in COMAR 21.05.02.12D are to be followed.

F. Award. Upon completion of all discussions and negotiations, the procurement officer shall make a determination recommending award of the contract to the responsible offeror whose proposal is determined to be the most advantageous to the State, considering price and the evaluation factors set forth in the request for proposals. In order for a procurement agency to achieve its overall minority participation goal and if the solicitation documents expressly permit it to be done, a procurement agency may, pursuant to COMAR 21.11.03.10A(1), recommend and award a contract to a certified minority business enterprise or to a person whose offer otherwise reflects the greatest amount of certified MBE or minority participation in the event of two or more offers in which the offerors' technical and price proposals are determined by the procurement officer to be equally most advantageous to the State. The MBE documentation required by COMAR 21.11.03.10B shall be used in making this determination. If the procurement agency is not a department, the procurement officer shall promptly notify all offerors of the recommended contract award, otherwise the notification is optional. After obtaining the approval of this recommendation by the agency head or designee, all other approvals required by this title, and certification by the appropriate fiscal authority as to the availability of funds, the procurement agency shall award the contract.

G. Notice of Award. After a contract is entered into, the procurement agency shall publish notice of its award in eMaryland Marketplace not more than 30 days after the execution and approval of the contract.

Md. Code Regs. 21.05.03.03

Regulation .03C amended effective June 4, 1984 (11:11 Md. R. 963)
Regulation .03A amended effective October 12, 1996 (23:20 Md. R. 1426)
Regulation .03G amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); amended effective 46:5 Md. R. 310, eff. 3/11/2019; amended effective 49:9 Md. R.531, eff. 5/2/2022; amended effective 50:25 Md. R. 1090, eff. 12/25/2023