Md. Code Regs. 21.05.06.02

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

Section 21.05.06.02 - Emergency Procurements

A. Scope. An emergency procurement shall be limited to the procurement of only the types of items and quantities of items necessary to avoid or to mitigate serious damage to public health, safety, and welfare as further defined in COMAR 21.01.02.01B. he initial term of an emergency contract or any emergency modification awarded under this regulation shall be limited to a maximum of 365 days. Any renewal options that are part of an emergency procurement award shall follow the rules for review and approval of renewal options, including review and approval by a control agency and the Board of Public Works as required under this title.

B. Authority.

(1) Any procurement agency may make an emergency procurement when an emergency arises and the agency's resulting need cannot be met through normal procurement methods.

(2) The procurement officer may award an emergency contract or make an emergency contract modification only with the approval of the agency head or designee.

(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 7 days of award and shall set forth:

(a) The basis and justification for the emergency procurement including the date the emergency first became known;

(b) A listing of supplies, services, maintenance, commodities, information technology, leases, construction, or construction-related services procured;

(c) The names of all persons solicited and a justification if the solicitation was limited to one person;

(d) The prices and times of performance proposed by the persons responding to the solicitation;

(e) The name of and basis for the selection of a particular contractor;

(f) The amount and type of the contract or contract modification;

(g) A listing of any prior or related emergency contracts, including all contract modifications, executed for purposes of avoiding or mitigating the particular emergency including the aggregate costs;

(h) The identification number, if any, of the contract file;

(i) The documented approval of the agency head or designee, as required by §B(2) of this regulation; and

(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) of this regulation, shall be forwarded by the procurement agency to the Board and to the appropriate control agency within 15 days of emergency contract award or emergency modification in accordance with COMAR 21.02.01.05A(3)(a).

(4) At the Board's request, the appropriate control agency shall review emergency procurement action agenda items and provide recommendations to the Board.

(5) The Board may direct the procurement agency or the appropriate control agency to take any action the Board deems appropriate concerning an emergency procurement.

(6) If supplies or commodities procured under an emergency procurement contract are not delivered and used within 1 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 State Government Article, § 2-1257, Annotated Code of Maryland, 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 at $1,000,000 or More.

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

Md. Code Regs. 21.05.06.02

Regulation .02A amended effective April 7, 2008 (35:7 Md. R. 751)
Regulation .02D amended effective November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); amended effective 49:9 Md. R.531, eff. 5/2/2022; amended effective 49:18 Md. R.819, eff. 9/5/2022