Md. Code Regs. 21.11.03.10

Current through Register Vol. 51, No. 24, December 2, 2024

Section 21.11.03.10 - Contract Award

A. General.

(1) In the event of tie bids, or of offers in which the evaluation of technical and price proposals is essentially equal, a procurement agency may award the contract, in accordance with COMAR 21.05.02.14 or 21.05.03.03F, as applicable, in order to obtain certified MBE participation.

(2) In exercising its delegation or control authority over contracts, the Department of General Services may require all determinations under this regulation and Regulation .11 of this chapter to be made before execution of a contract, or approval by the control agency, or both.

(3) Accomplishment of Goal. A prime contractor, including a joint venture, shall accomplish an amount of work not less than the MBE subcontract goal with certified MBE subcontractors.

B. Additional Documentation.

(1) The documentation in §B(2)-(4) of this regulation is considered as part of the contract, and shall be furnished by the apparent successful bidder or offeror to the procurement officer within 10 working days from notification of apparent award. If the documentation is not furnished within the specified time, the bidder or offeror may be rejected as nonresponsible. No contract award may be made until the documentation is provided to and reviewed by the procuring agency.

(2) An MBE subcontractor project participation statement shall be furnished, signed by the bidder or offeror and each MBE listed in the MBE participation schedule, which includes:

(a) A statement of intent to enter into a subcontract agreement between the apparent successful bidder or offeror and each proposed MBE subcontractor at the time the State contract is awarded to the apparent successful bidder or offeror;

(b) A copy of each subcontract agreement between the apparent successful bidder or offeror and each proposed MBE subcontractor, that the apparent successful bidder or offeror and each proposed MBE subcontractor intend to enter into contingent upon the State's contract award to the apparent successful bidder or offeror, containing all necessary terms, including pricing, required for the MBE to perform its proposed work and for the apparent successful bidder or offeror to pay the MBE for its work during the contract term; and

(c) The amount and type of bonds required of MBE subcontractors, if any.

(3) Each MBE proposed as a subcontractor on the recommended contract award shall complete a document stating the percentage and type of work assigned to the proposed MBE subcontractor under the recommended contract award and submit copies of the completed form to both the procurement officer and the apparent successful bidder or offeror.

(4) An affidavit shall be completed and signed by the apparent successful bidder or offeror stating that, in the solicitation of subcontract quotations or offers, MBE subcontractors were provided not less than the same information and amount of time to respond as were non-MBE subcontractors. With this affidavit, the apparent successful bidder or offeror shall provide to the procuring agency a list of MBEs with whom the apparent successful bidder or offeror negotiated, including price quotes from minority and nonminority firms.

(5) Other documentation considered appropriate by the procurement agency to ascertain bidder or offeror responsibility in connection with the contract MBE participation goal shall be furnished by the bidder or offeror.

(6) The procuring agency shall review the documentation submitted under §B(2)-(5) of this regulation and confirm in writing that the submitted documents meet the requirements of this regulation, including verifying that all MBE subcontract agreements contain necessary terms, prior to any State contract award with MBE subcontractor participation.

(7) Any MBE utilization affidavit or MBE participation schedule submitted by an apparent successful bidder or offeror that does not include a commitment to achieve the contract goal and any subgoals for MBE participation is an implied request for a full or partial waiver of the remainder of the contract goal or subgoals, as applicable, and the apparent successful bidder or offeror shall submit documentation supporting that waiver request as provided in Regulation .11 of this chapter.

(8) The contractor, by submitting the bid or offer, consents to provide that documentation requested by the designated department or procurement agency pursuant to COMAR 21.11.03.13, and to provide right of entry at any reasonable time for purposes of the State's representatives verifying compliance with the MBE subcontractor requirements.

C. Contracts Involving MBE Subcontracts.

(1) A contract involving MBE subcontracts is subject to the procurement agency's concluding that the apparent successful bidder or offeror meets the applicable certified MBE participation provisions contained in the solicitation, law, and regulations.

(2) Upon review of the documentation submitted under §B of this regulation, the procurement agency shall make a finding whether the apparent successful bidder or offeror has complied in good faith with the outreach efforts required under Regulation .09C(2)(a)-(e) of this chapter. If the procurement agency finds that the apparent successful bidder or offeror has not complied in good faith, the agency may require the apparent successful bidder or offeror to renegotiate any MBE subcontract agreement with a proposed MBE to attempt to meet compliance, without altering the MBE's proposed participation included in the MBE utilization affidavit or MBE participation schedule. Any renegotiated MBE subcontract agreement shall be reviewed and approved by the procurement agency for compliance prior to any State contract award to the apparent successful bidder or offeror. If the procurement agency finds that the apparent successful bidder or offeror has complied in good faith, the agency may not require the the apparent successful bidder or offeror to renegotiate any subcontract in order to achieve a different result.

D. Solicitation documents completed and submitted by the bidder or offeror in connection with its certified MBE participation commitment shall be made part of the procurement contract.

E. All contracts containing certified MBE participation goals shall contain a liquidated damages provision that applies if the contractor fails to comply in good faith with the provisions of State MBE laws or the pertinent terms of the procurement contract and a provision that prohibits a unit from assessing liquidated damages for an indefinite delivery contract or an indefinite performance contract if a unit fails to request the performance or delivery of a task for which an MBE subcontractor was:

(1) Named on the MBE Participation Schedule; or

(2) Named on the MBE Participation Schedule and qualified based on the subcontractor's existing North American Industry Classification System Code.

F. If a procurement agency determines that the apparent successful bidder or offeror has not complied with the certified MBE subcontract participation contract goal, and has not obtained a waiver in accordance with Regulation .11 of this chapter, or if the bidder or offeror fails to submit the documentation required by the solicitation, or fails to comply in good faith with the outreach efforts required under Regulation .09C(2)(a)-(e) of this chapter, the procurement officer, upon review by the Office of the Attorney General and approval of the agency head having jurisdiction over the contract, may reject the bid or offer or cancel the award of the contract. The reasons for this action shall be specified in writing and mailed or delivered to the bidder or offeror.

Md. Code Regs. 21.11.03.10

Regulation .10A, B amended effective September 2, 1991 (18:17 Md. R. 1922)
Regulation .10 amended effective 40:9 Md. R. 789, eff.5/13/2013
Regulation .10B amended effective April 7, 2008 (35:7 Md. R. 751); amended effective 46:5 Md. R. 310, eff. 3/11/2019; amended effective 46:14 Md. R. 621, eff. 7/15/2019; amended effective 49:9 Md. R.531, eff. 5/2/2022; amended effective 50:25 Md. R. 1090, eff. 12/25/2023