Current through Register Vol. 51, No. 19, September 20, 2024
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.
