Current through Register Vol. 51, No. 19, September 20, 2024
A.
Definitions.
(1) In this regulation, the
following terms have the meanings indicated.
(2) Terms Defined.
(a) "Conflict of interest" means that,
because of other activities or relationships with other persons:
(i) A person is unable or potentially unable
to render impartial assistance or advice to the State;
(ii) The person's objectivity in performing
the contract work is or might be otherwise impaired; or
(iii) A person has an unfair competitive
advantage.
(b) Person.
(i) "Person" has the meaning stated in COMAR
21.01.02.01B(64).
(ii) "Person" includes a bidder, offeror,
contractor, consultant, or subcontractor or subconsultant at any tier, and also
includes an employee or agent or any of them if the employee or agent has or
will have the authority to control or supervise all or a portion of the work
for which a bid or offer is made.
B. A solicitation that will result in the
selection of a contractor who will assist a unit in the formation, evaluation,
selection, award, or execution of a State contract shall provide notice of the
requirements of State Finance and Procurement §13-212.1, Annotated Code of
Maryland, and this regulation.
C.
If the procurement officer makes a determination before award that facts or
circumstances exist giving rise or which could in the future give rise to a
conflict of interest, the procurement officer may reject a bid or offer under
COMAR 21.06.02.03B.
D. Termination.
(1) After award, the State may terminate the
contract, in whole or in part, if it considers termination necessary to avoid
an actual or potential conflict of interest.
(2) If the contractor knew or reasonably
could have been expected to know of an actual or potential conflict of interest
before or after award and did not disclose it or misrepresented relevant
information to the procurement officer, the State may terminate the contract
for default, institute proceedings to debar the contractor from further State
contracts, or pursue other remedies as may be permitted by law or the
contract.
E. A conflict
of interest may be waived if the procurement officer, with approval of the
agency head, determines that waiver is in the best interest of the State. The
determination shall state the reasons for the waiver and any controls that
avoid, mitigate, or neutralize the conflict of interest.
F. A bidder or offeror responding to a
solicitation that will result in the selection of a contractor who will assist
a unit in the formation, evaluation, selection, award, or execution of another
State contract shall provide the affidavit and disclosures set forth in §G
of this regulation to the procurement officer with the bid or offer and at
other times as may be required by the procurement officer.
G. The affidavits and disclosures required by
§F of this regulation shall be in substantially the same form as follows:
CONFLICT OF INTEREST AFFIDAVIT AND DISCLOSURE
A. "Conflict of interest" means that because
of other activities or relationships with other persons, a person is unable or
potentially unable to render impartial assistance or advice to the State, or
the person's objectivity in performing the contract work is or might be
otherwise impaired, or a person has an unfair competitive advantage.
B. "Person" has the meaning stated in COMAR
21.01.02.01B(64)
and includes a bidder, offeror, contractor, consultant, or subcontractor or
subconsultant at any tier, and also includes an employee or agent of any of
them if the employee or agent has or will have the authority to control or
supervise all or a portion of the work for which a bid or offer is
made.
C. The bidder or offeror
warrants that, except as disclosed in §D, below, there are no relevant
facts or circumstances now giving rise or which could, in the future, give rise
to a conflict of interest.
D. The
following facts or circumstances give rise or could in the future give rise to
a conflict of interest (explain detail-attach additional sheets if
necessary):
E. The bidder or
offeror agrees that if an actual or potential conflict of interest arises after
the date of this affidavit, the bidder or offeror shall immediately make a full
disclosure in writing to the procurement officer of all relevant facts and
circumstances. This disclosure shall include a description of actions which the
bidder or offeror has taken and proposes to take to avoid, mitigate, or
neutralize the actual or potential conflict of interest. If the contract has
been awarded and performance of the contract has begun, the contractor shall
continue performance until notified by the procurement officer of any contrary
action to be taken.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF
PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF
MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date:____________________By:______________________________________ (Authorized
Representative and Affiant)
