Md. Code Regs. 21.05.07.06

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

Section 21.05.07.06 - Standards

A. Solicitation Objective.

(1) Competition.

(a) The objective of soliciting bids or offers is to foster competition in obtaining needed items in a cost effective manner. In all small procurements, competition should be sought to the extent practical considering factors such as availability of vendors, dollar value of the procurement, cost of administering the procurement, and time available to make the procurement including delivery time. For Categories II and III responsive bids or acceptable offers from at least two vendors should be obtained.

(b) A solicitation shall include a summary of the factors used to determine the expected degree of minority business enterprise participation, including subcontracting opportunities identified for the project, any applicable North American Industry Classification System (NAICS) codes linked to the subcontracting opportunities, and the number of certified minority business enterprises in those industries.

(2) Minority Business Enterprises. In addition to the solicitation objective set forth in §A(1) of this regulation, each procurement agency shall solicit bids or offers from a sufficient number of certified minority business enterprises listed in the Central Directory, under COMAR 21.11.03.06.

(3) Single Bid. If only one responsive bid or acceptable offer is received in response to a solicitation, an award may be made to the bidder or offeror if the procurement officer determines that the price submitted is fair and reasonable, and that the other vendors had reasonable opportunity to respond.

(4) Small Businesses. In addition to the solicitation objectives set forth above, procurement agencies shall, consistent with law, attempt to solicit bids or offers from small businesses selected from the certified small business list under COMAR 21.11.01.04.

B. Solicitation Methods and Use.

(1) The acceptable methods of soliciting bids or offers from vendors for small procurements are oral solicitation and written solicitation, as defined in Regulation .01 of this chapter.

(2) Procurement agencies may use either or both of the solicitation methods specified in §B(1) of this regulation for Categories I and II Small Procurements. If both oral and written solicitations are used, procurement agencies shall ensure that the solicitation terms are consistent.

(3) Except for sole source procurement, procurement agencies shall use written solicitations in attempting to achieve Category III solicitation objectives. Oral solicitations may be used as an addition to the written solicitations. If both oral and written solicitations are used, procurement agencies shall ensure that the solicitation terms are consistent.

(4) All Category III solicitations shall be posted on eMaryland Marketplace at least 3 days before bids or offers are due. Procurement agencies are not required to post solicitations for Categories I and II small procurements on eMaryland Marketplace.

(5) Electronically transmitted bids or offers may be accepted for small procurements if the procurement agency specifically authorizes electronically transmitted bids or offers in the solicitation.

C. Standards for Written Solicitations. A written solicitation used for a small procurement shall contain, at a minimum, the following elements:

(1) A description of the item requested;

(2) Time, date, place, and form of response requested;

(3) The basis for award as provided under §D of this regulation;

(4) The provisions concerning mercury content under COMAR 21.11.07; and

(5) The name and telephone number of the procurement officer.

D. Basis for Award. The basis for award shall be:

(1) Category I Small Procurement-The judgment of the procurement officer;

(2) Categories II and III Small Procurements-The most favorable bid price or evaluated bid price, or most advantageous offer, as specified in the solicitation; or

(3) In the event of tie bids, the provisions of COMAR 21.05.02.14 shall determine the successful bidder.

E. Contract Documentation. The following documentation is required for each small procurement:

(1) Small Procurements of $5,000 or less:

(a) For oral solicitations-a contract shall be documented by a receipt, invoice, repair order, packing slip, or voucher; and

(b) For written solicitations-a contract shall be documented by a purchase order or contract; and

(2) Small Procurements Exceeding $5,000. A written contract is required in the form of a purchase order or other form of contract.

F. Small Procurement Written Contract Content. Any purchase order or other form of contract used for small procurements shall contain the following elements:

(1) Identification of the parties to the contract including contractor taxpayer identification number; the taxpayer identification number shall be the Social Security number for individuals and sole proprietors and the federal employer identification number for all other types of organizations;

(2) A statement of the scope of the contract;

(3) The dollar value of the contract, if known, or estimated dollar value if the actual value is not known;

(4) The term of the contract, including completion or delivery date;

(5) Name of the procurement officer responsible for the contract; and

(6) A clause containing the following: "The Contractor shall comply with the provisions of State Finance and Procurement Article, Title 19, Annotated Code of Maryland."

G. Contract Clauses. In addition to the contract elements specified in §F of this regulation, a written small procurement contract may include the clauses, items, or conditions specified below as well as those additional clauses necessary for the particular procurement. The language of the following clauses is preferred:

(1) Termination for Nonappropriation. "If funds are not appropriated or otherwise made available to support continuation in any fiscal year succeeding the first fiscal year, this Contract shall be terminated automatically as of the beginning of the fiscal year for which funds are not available. The Contractor may not recover anticipatory profits or costs incurred after termination."

(2) Maryland Law Prevails. "The law of Maryland shall govern the interpretation and enforcement of this Contract."

(3) Disputes. "Disputes arising under this Contract shall be governed by State Finance and Procurement Article, Title 15, Subtitle 2, Part III, Annotated Code of Maryland, and by COMAR 21.10. Pending resolution of a dispute, the Contractor shall continue to perform this Contract, as directed by the Procurement Officer."

(4) Changes. "This Contract may be amended only with the written consent of both parties. Amendments may not significantly change the scope of the Contract (including the Contract price)."

(5) Termination for Default. "If the Contractor does not fulfill obligations under this Contract or violates any provision of this Contract, the State may terminate the Contract by giving the Contractor written notice of termination. Termination under this paragraph does not relieve the Contractor from liability for any damages caused to the State. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B."

(6) Nondiscrimination. "The Contractor shall comply with the nondiscrimination provisions of federal and Maryland law."

(7) Anti-Bribery. "The Contractor certifies that, to the Contractor's best knowledge, neither the Contractor; nor (if the Contractor is a corporation or partnership) any of its officers, directors, or partners; nor any employee of the Contractor who is directly involved in obtaining contracts with the State or with any county, city, or other subdivision of the State, has been convicted of bribery, attempted bribery, or conspiracy to bribe under the laws of any state or of the United States."

(8) Termination for Convenience. "The State may terminate this Contract, in whole or in part, without showing cause upon prior written notice to the Contractor specifying the extent and the effective date of the termination. The State shall pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination and all reasonable costs associated with termination of the Contract. However, the Contractor may not be reimbursed for any anticipatory profits which have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2)."

(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" have the meanings stated in COMAR 21.10.08.01.

(b) A contractor shall promptly pay its subcontractors an undisputed amount to which a subcontractor 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 may request a remedy in accordance with COMAR 21.10.08.

(d) A contractor shall include in its subcontracts at any tier for work under this contract, wording that incorporates the provisions, duties, and obligations of §G(9)(a)-(d) of this regulation, State Finance and Procurement Article, § 15-226, Annotated Code of Maryland, and COMAR 21.10.08.

H. Contract Form and Legal Sufficiency. Standard contract forms for small procurements shall be approved for form and legal sufficiency by an attorney designated by the Attorney General.

I. Small Procurement Record.

(1) Each procurement agency shall establish written procedures for maintaining small procurement records. These records shall be maintained by the using agency until audited or for a period of 3 years after final payment, whichever occurs last.

(2) Minimum record requirements applicable to small procurement contracts are as follows:

(a) Category I Small Procurement Contracts Resulting from Oral Solicitations:

(i) Name and telephone number of person expending funds;

(ii) Date of contract award;

(iii) Name and address of contractor;

(iv) Receipt, invoice, repair order, packing slip, or voucher;

(v) Brief description of item procured.

(b) Category I Small Procurement Contracts Resulting from Written Solicitations:

(i) Name and telephone number of responsible procurement officer;

(ii) Date of contract award;

(iii) Name and address of contractor;

(iv) Purchase order or contract;

(v) Invoice and receiving documentation;

(vi) Brief description of item procured;

(vii) Copy of written solicitation, if used;

(viii) Copy of bid board or newspaper notice, if used.

(c) Category II and III Small Procurement Contracts Resulting from Written Solicitations:

(i) Name and telephone number of responsible procurement officer;

(ii) Date of contract award;

(iii) Name and address of contractor;

(iv) Purchase order or contract;

(v) Invoice and receiving documentation;

(vi) Description of item procured;

(vii) Bid or offer documentation including names of all vendors directly solicited, copies of any written bids or offers received, bid or offer amounts, statement signed by the procurement officer detailing basis of award, identification of minority business enterprises and small businesses directly solicited, and, when only one bid or offer is received in response to a solicitation, an explanation for the lack of a greater response;

(viii) Copy of written solicitation;

(ix) Copy of eMaryland Marketplace notice, and copy of bid board or newspaper notice, if used;

(x) A brief written justification if the procurement was sole source;

(xi) For Category III Small Procurements, a copy of certification by the appropriate fiscal authority of fund availability to satisfy the contractual requirement.

J. Reporting.

(1) Procurement agencies are not required to report small procurements in the annual reports prescribed by State Finance and Procurement Article, § 15-111, Annotated Code of Maryland.

(2) Procurement agencies are not required to report small procurement awards in eMaryland Marketplace.

Md. Code Regs. 21.05.07.06

Regulation .06 amended effective September 21, 2009 (36:19 Md. R. 1438)
Regulation .06A amended effective September 2, 1991 (18:17 Md. R. 1922); May 20, 1996 (23:10 Md. R. 732); February 24, 1997 (24:4 Md. R. 294); March 18, 2002 (29:5 Md. R. 505); July 4, 2005 (32:13 Md. R. 1117)
Regulation .06B amended effective February 24, 1997 (24:4 Md. R. 294); April 7, 2008 (35:7 Md. R. 751); July 23, 2012 (39:14 Md. R. 839);41:8 Md. R. 473, eff. 4/28/2014
Regulation .06C amended effective May 26, 2003 (30:10 Md. R. 668)
Regulation .06D amended effective March 18, 2002 (29:5 Md. R. 505)
Regulation .06E amended effective June 29, 1998 (25:13 Md. R. 996); December 25, 2000 (27:25 Md. R. 2284)
Regulation .06F amended effective August 2, 1993 (20:15 Md. R. 1221); April 7, 2008 (35:7 Md. R. 751)
Regulation .06G amended effective November 22, 1993 (20:23 Md. R. 1806)
Regulation .06I amended effective February 24, 1997 (24:4 Md. R. 294); June 29, 1998 (25:13 Md. R. 996); July 23, 2012 (39:14 Md. R. 839)
Regulation .06J amended effective February 24, 1997 (24:4 Md. R. 294); November 7, 2005 (32:22 Md. R. 1759); April 7, 2008 (35:7 Md. R. 751); amended effective 50:18 Md. R. 800, eff. 9/18/2023