Md. Code Regs. 21.11.03.11

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

Section 21.11.03.11 - Waiver

A. If, for any reason, the apparent successful bidder or offeror is unable to achieve the contract goal for each certified MBE classification specified as having a subcontract goal or the overall MBE contract goal, the bidder or offeror shall submit the following documentation in support of a waiver request:

(1) A detailed statement of the efforts made to select portions of the work proposed to be performed by certified MBEs, including the work to be performed by each MBE classification if an MBE subgoal has been specified, in order to increase the likelihood of achieving the stated goal;

(2) A detailed statement of the efforts made to contact and negotiate with certified MBEs, and if appropriate, by certified MBE classification, including:

(a) The names, addresses, dates, telephone numbers, and classification of certified MBEs contacted, and

(b) A description of the information provided to certified MBEs regarding the plans, specifications, and anticipated time schedule for portions of the work to be performed;

(3) As to each certified MBE that placed a subcontract quotation or offer that the apparent successful bidder or offeror considers not to be acceptable, a detailed statement of the reasons for this conclusion;

(4) A list of certified MBEs including, if applicable, certified MBEs in each MBE classification, found to be unavailable, which shall be accompanied by an MBE unavailability verification form signed by the certified MBE, or a statement from the apparent successful bidder or offeror that the certified MBE refused to give the written verification;

(5) The record of the apparent successful bidder's or offeror's compliance with the outreach efforts required under Regulation .09C(2)(a)-(e) of this chapter; and

(6) If the request for a waiver is for a certain MBE classification within an overall MBE goal, the bidder or offeror shall demonstrate reasonable efforts to meet the overall MBE goal with other MBE classification or classifications.

B. A waiver of a certified MBE contract goal may be granted only upon a reasonable demonstration by the bidder or offeror that certified MBE subcontract participation was unable to be obtained, or was unable to be obtained at a reasonable price or in the appropriate MBE classifications, and if the agency head or designee determines that the public interest is served by a waiver. In making a determination under this section, the agency head or designee may consider engineering estimates, catalogue prices, general market availability, and availability of certified MBEs in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between certified MBE and non-MBE cost of participation, and their impact on the overall cost of the contract to the State and any other relevant factor.

C. An agency head may waive any of the provisions of Regulations .09-.10 of this chapter for a sole source, expedited, or emergency procurement in which the public interest cannot reasonably accommodate use of those procedures.

D. When a waiver is granted, except waivers under §C of this regulation, one copy of the waiver determination and the reasons for the determination shall be kept by the MBE liaison officer with another copy forwarded to the Office of Minority Affairs.

E. Not later than July 31 of each year, each procurement agency shall submit directly to the Board of Public Works and the Governor's Office of Minority Affairs an Annual Report of Waivers Requested and Waivers Granted under this regulation.

F. The report required under §E of this regulation shall contain the following information on those contracts where Minority Business Enterprise goals, or subgoals, are present and one or more waiver requests have been submitted:

(1) The contract titles, numbers, and dates;

(2) The number of waiver requests received;

(3) The number of waiver requests granted; and

(4) Any other information specifically requested by the Board.

G. The Board shall:

(1) Retain a copy of the Annual Report of Waivers Requested and Waivers Granted for each agency; and

(2) Forward a copy to the General Assembly, the Governor's Office of Minority Affairs, and each control agency, before October 1 of each year.

Md. Code Regs. 21.11.03.11

Regulations .11 effective May 24, 2004 (31:10 Md. R. 796)
Regulation .11E_G adopted effective May 24, 2004 (31:10 Md. R. 796)
Regulation .11E amended effective April 7, 2008 (35:7 Md. R. 751); amended effective 46:14 Md. R. 621, eff. 7/15/2019