Current through Register Vol. 51, No. 19, September 20, 2024
A. To attain the
overall and specific MBE goals under Regulation .01C of this chapter,
procurement agencies shall set, where appropriate, an overall certified MBE
participation goal, expressed as a percentage of the dollar value of the
contract, and subgoals to facilitate the participation of certain groups as
prescribed under Regulation .01C(2) of this chapter, unless:
(1) The procurement is a construction
contract having an estimated value of less than $50,000; or
(2) The contract has been designated as a
procurement to be made without any certified MBE participation goals.
B. Goal Setting Generally.
(1) A procurement agency shall assess the
potential for certified MBE prime contractor and subcontractor participation in
each contract, and estimate the amount of participation if any before
initiating the procurement. The procurement agency shall use the MBE strategies
decided most appropriate for the particular contract.
(2) A procurement agency shall consider the
practical severability of all contracts and, in accordance with COMAR
21.05.01.08, may not bundle
contracts for the purpose of precluding or limiting participation by MBEs or
small businesses.
(3) The following
factors may be used to anticipate the degree of certified MBE prime contractor
participation, to decide the certified MBE participation goal and subgoals,
when used, and the MBE prime contractor and subcontractor procurement strategy
to be used:
(a) The extent to which direct
solicitation at the prime contract level, subcontracting, or a combination of
both is determined most likely to result in maximum certified MBE participation
in the contract;
(b) The number of
certified MBEs listed in the Central Directory or otherwise identified for a
particular supply, service, maintenance, construction, construction-related
service, architectural service, or engineering service;
(c) The geographical proximity, when
relevant, of certified MBEs identified under §A(2)(b) of this regulation
to the location of the work to be performed;
(d) The feasibility of subcontracting
opportunities given the nature and extent of the proposed contract;
and
(e) The guidelines established
by the Governor's Office of Small, Minority & Women Business Affairs for
determining the subgoals to be set for the groups listed in State Finance and
Procurement Article, §
14-301(k)(l)(i)
1-4 and 6, Annotated Code of Maryland.
(4) Procurement agencies may not use
quotas.
(5) Procurement agencies
may not use any project goal-setting process that:
(a) Solely relies on the State's overall
percentage goal, or any other jurisdiction's overall percentage goal;
or
(b) Fails to incorporate an
analysis of:
(i) The potential subcontract
opportunities available in the prime procurement contract;
(ii) The availability of certified MBEs to
respond competitively to the potential subcontract opportunities;
(iii) Guidelines established by the Office of
Minority Affairs; and
(iv) Other
factors that contribute to Constitutional goal setting.
C. MBE Subcontracting
Provisions.
(1) Any contract may contain
certified MBE subcontract participation goals, expressed as a percentage of the
dollar value of the contract, that the contractor shall attempt to subcontract
to certified MBEs.
(2) Solicitation
Content. Each solicitation identified by a procurement agency as having
subcontract opportunities shall contain the clauses required by COMAR
21.05.08.03 and .04. The
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. The solicitation shall also contain provisions
requiring bidders or offerors including those bidders or offerors that are
certified MBEs to:
(a) Identify specific work
categories within the scope of the procurement appropriate for
subcontracting;
(b) Solicit
certified MBEs in writing at least 10 days before bids or proposals are due,
describing the identified work categories and providing instructions on how to
bid on the subcontracts;
(c)
Attempt to make personal contact with the certified MBEs solicited and to
document these attempts;
(d) Assist
certified MBEs to fulfill, or to seek waiver of, bonding requirements;
and
(e) Attend prebid or other
meetings the procurement agency schedules to publicize contracting
opportunities to certified MBEs.
(3) On forms provided by the procurement
agency, a bidder or offeror shall submit with its bid or proposal:
(a) A completed MBE utilization and fair
solicitation affidavit including either an agreement to meet the certified MBE
participation goal or a request for a full or partial waiver; and
(b) A completed MBE participation schedule
that identifies the certified minority businesses that the bidder or offeror
agrees to utilize in the performance of the contract and the percentage of
contract value attributed to each MBE.
(4) The MBE participation schedule shall:
(a) Include the name of each certified MBE
that will participate in the project including the certification category under
which the MBE is participating; and
(b) Include the percentage of the contract to
be paid to each MBE for the work or supply.
(5) The failure of a bidder to accurately
complete and submit the MBE utilization affidavit and the MBE participation
schedule shall result in a determination that the bid is not responsive unless
the inaccuracy is determined to be the result of a minor irregularity that is
waived or cured in accordance with COMAR 21.06.02.04.
(6) The failure of an offeror to accurately
complete and submit the MBE utilization affidavit and the MBE participation
schedule shall result in a determination that the proposal is not reasonably
susceptible of being selected for award unless the inaccuracy is determined to
be the result of a minor irregularity that is waived or cured in accordance
with COMAR 21.06.02.04.
(7) The
names of prime contractors requesting or purchasing solicitation documents for
construction contracts shall be made available on request to any certified MBEs
whose specialty suggests an interest in subcontracting.
(8) Each prime contractor given solicitation
documents as part of a procurement shall be given the web address for the
electronic version of the MBE directory for purposes of soliciting subcontract
quotations, bids, or offers from certified MBEs.
D. Direct Solicitation. As part of the
solicitation process being employed for the business community in general, and
in addition to the public notice requirements of COMAR
21.05.02.04 and
21.05.03.02B, a
procurement agency shall send a copy of the solicitation or notice of the
solicitation, or both, to a sufficient number of certified MBEs listed in the
central directory as is likely to result in certified MBE responses to the
solicitation.
E. Notification -
Organizations and Trade Groups. Except for sole source, small, and emergency
procurements, a copy of the solicitation notice for each procurement may be
sent in an electronic format to the Office of Minority Affairs for distribution
to the appropriate minority business associations, minority business assistance
agencies, and trade organizations identified by the Office of Minority
Affairs.
F. Prebid and Preproposal
Conferences. When prebid or preproposal conferences are held, the procurement
agency shall explain the certified MBE subcontracting goal if applicable, the
MBE provisions of the solicitation, the documentation required, and its
relationship to the determinations that will be made in connection with the
evaluation process.
G. Federal
Requirements. To the extent required by federal assistance instruments
applicable to contracts let by the State under a federal assistance program,
only those MBEs meeting federal requirements and criteria shall be
used.
