Md. Code Regs. 21.01.02.01

Current through Register Vol. 51, No. 22, November 1, 2024

Section 21.01.02.01 - Definitions

A. In this title, the following words have the meanings indicated.

B. Terms Defined.

(1) "Alternate bid" means a dollar amount to be added to or subtracted from the bid for a variation in the item being bid upon. Alternate bids may be either "add alternate bids" or "deduct alternate bids".

(2) "Annual cost" means a maximum dollar expenditure for a 12-month period including the costs of amendments, change orders, and renewals.

(3) "Anticipated contract cost" means the dollar amount indicated by the best information readily available for the completed project cost without partitioning or segmenting the project.

(4) "Appeals Board" means the Maryland State Board of Contract Appeals.

(5) "Appropriate department" means the department with control agency responsibility under this title for the procurement.

(6) Architectural Services.

(a) "Architectural services" means professional or creative work that is performed in connection with the design and supervision of construction or landscaping, and that requires architectural education, training, and experience.

(b) "Architectural services" includes consultation, research, investigation, evaluation, planning, architectural design and preparation of related documents, and coordination of services furnished by structural, civil, mechanical, and electrical engineers and other consultants.

(c) "Architectural services" does not include construction inspection services or services provided in connection with an energy performance contract for structural, mechanical, plumbing, or electrical engineering.

(7) Repealed.

(8) "Award" means the transmission by the procurement agency, after all required approvals have been obtained, of:

(a) The executed contract; or

(b) Written notice of award to the selected vendor.

(9) "Bid" means a statement of price, terms of sale, and description of the supplies, services, construction, or construction-related services offered by a bidder in response to an invitation for bids under procurement by competitive sealed bidding or comparable small procurement procedures.

(10) "Bid board" means a bulletin board displayed in an area to which the public has access and on which are posted solicitations or announcements of availability of solicitations, or both.

(11) "Bid sample" means a sample furnished by a bidder to show the characteristics of the item offered in the bid which will be delivered in accordance with the terms and conditions of the contract.

(12) "Bidder's application" means the appropriate form designated by the procurement agency for use by vendors wishing to do business with the State.

(13) "Board" means the Board of Public Works.

(13-1) "Broker" means a person that conducts business (other than real estate, investment, or insurance sales) on a pass-through basis and with respect to:

(a) Supplies:

(i) Does not own, operate, or maintain a place of business in which supplies of the general character required under the contract are kept in stock in the regular course of business,

(ii) Does not regularly assume physical custody or possession of supplies of comparable character to those offered to the State, or

(iii) Exclusively acts as a middleman in the provision of supplies offered to the State; or

(b) Services, does not regularly maintain the capability, capacity, training, experience, and applicable regulatory licensing to directly perform the principal tasks of a contract with the State, and acquires the services elsewhere, for the benefit of the State.

(14) "Business" means any corporation, partnership, individual, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.

(15) Repealed.

(16) "Change order" means a written order signed by the responsible procurement officer, directing a contractor to make changes which the changes clause of a contract authorizes the procurement officer to order with or without the consent of the contractor.

(16-1) "Chief Procurement Officer (CPO)" means an official of the Department of General Services, appointed by the Governor with the advice and consent of the Senate, who is the head of all procurement activity for the Executive Branch of State government within the jurisdiction of the Department of General Services.

(17) "Code" means the Annotated Code of Maryland.

(18) "Commissioner" means the Commissioner of Labor and Industry of the State Department of Labor, Licensing, and Regulation.

(19) Commodity.

(a) "Commodity" means an item of purchase which may include office goods and materials, food, printing, copying, energy, building materials, and other items needed to support normal operations.

(b) "Commodity" differs from "supply" in that commodity does not include leases of real property.

(20) "Competitive sealed bidding" means the process set forth in COMAR 21.05.02.

(21) "Competitive sealed proposals" means the process set forth in COMAR 21.05.03.

(22) "Comptroller" means the Comptroller of the Treasury of the State.

(23) Construction.

(a) "Construction" means the process of building, altering, repairing, improving, or demolishing any structure, building, or other improvement to real property.

(b) "Construction" includes any major work necessary to repair, prevent damage to, or sustain existing components of an improvement to real property.

(c) "Construction" does not include the maintenance or routine operation of an existing improvement to real property, or activities related to an energy performance contract.

(24) Construction-Related Services.

(a) "Construction-related services" means a service that is necessary for construction and maintenance of a public improvement project.

(b) "Construction-related services" includes feasibility studies, surveying, construction management, construction inspection, programming, energy audits, interior design, and telecommunications systems.

(c) "Construction-related services" does not include:

(i) Such services as housekeeping, security, janitorial, and the like;

(ii) Services provided in connection with an energy performance contract.

(25) Contract.

(a) "Contract" means an agreement:

(i) In writing except as otherwise authorized; and

(ii) Entered into by a procurement agency for the lease as lessee of real or personal property or the acquisition of supplies, services, construction, construction-related services, architectural services, or engineering services.

(b) "Contract" does not include:

(i) Collective bargaining agreements with employee organizations or agreements creating employer-employee relationships, as defined in State Personnel and Pensions Article, § 13-101, Annotated Code of Maryland; or

(ii) Medicaid, Medicare, Judicare, or similar reimbursement contracts for which user eligibility and cost are set by law or regulation.

(26) "Contract modification" means any written alteration in the specifications, delivery point, date of delivery, contract period, price, quantity, or other provision of any existing contract, whether accomplished in accordance with a contract provision, or by mutual action of the parties to the contract. It includes change orders, extra work orders, supplemental agreements, contract amendments, or reinstatements.

(27) "Contractor" means any person having a contract with a procurement agency. Contractor does not include an employee with an employment contract, or an employee organization with a collective bargaining agreement.

(28) "Control" means the power to supervise, regulate, or command and includes the authority to approve or disapprove an action.

(29) "Control authority or agency" means a department having the power to supervise, regulate, command, approve or disapprove actions of a procurement agency or using agency.

(30) "Cost-reimbursement contract" means a contract under which the State reimburses the contractor for those contract costs, within a stated ceiling, and a fee, if any, which are recognized as allowable and allocable under the cost and price principle regulations.

(31) "Cultural services" means services that are provided directly to third-party clients or to the public under a contract the primary purpose of which is the direct provision of cultural services.

(32) "Day" means calendar day unless otherwise designated.

(33) "Department" means the State Treasurer, the Departments of General Services and Transportation, and the Maryland Port Commission.

(34) "Determination" means a written procurement decision made by a public official or employee which is based upon written findings.

(35) "Educational services" means services procured by the Departments of Health and Mental Hygiene, Human Resources, Labor, Licensing, and Regulation, Juvenile Services, Disabilities, or Aging in order to provide training directly to third-party clients under a contract the primary purpose of which is the direct provision of educational services.

(35-1) "eMaryland Martketplace" or "eMaryland Marketplace Advantage" or "eMMA" means the Internet-based procurement system managed by the Department of General Services.

(36) "Emergency" means an occurrence or condition that creates an immediate and serious need for services, materials, or supplies that cannot be met through normal procurement methods and are required to avoid or mitigate serious damage to public health, safety, or welfare.

(36-1) "Energy performance contract" means an agreement for the provision of energy service, including electricity, heating, ventilation, cooling, steam, or hot water, in which a person agrees to design, install, finance through direct vendor financing and not by way of a municipal lease, maintain, or manage energy systems or equipment to improve the energy efficiency of a building or facility in exchange for a portion of the energy savings.

(37) Engineering Services.

(a) "Engineering services" means professional or creative work that:

(i) Is performed in connection with utilities, structures, buildings, machines, equipment, and processes, including structural, mechanical, plumbing, electrical, geotechnical, and environmental engineering; and

(ii) Requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences.

(b) "Engineering services" includes consultation, investigation, evaluation, planning, design, and inspection of construction for the purpose of interpreting and assuring compliance with specifications and design within the scope of inspection services.

(c) "Engineering services" does not include:

(i) The inspection of construction not requiring engineering training;

(ii) Services provided in connection with an energy performance contract.

(38) Equipment.

(a) "Equipment" means personal property of a durable nature that retains its identity throughout its useful life.

(b) "Equipment" includes aircraft and vessels.

(c) "Equipment" does not include commodities, motor vehicles, or information technology equipment (hardware and software).

(39) "Equivalent item" means an item of equipment, material, or supply, the quality, design, or performance characteristics of which are functionally equal or superior to an item specified in a solicitation.

(40) "Established catalog price" means the price included in a current catalog, price list, schedule, or other form that:

(a) Is regularly maintained by the manufacturer or supplier of an item;

(b) Is published or available for inspection by customers; and

(c) States:

(i) Discounted prices at which sales are currently or were last made to local, state, or federal agencies; or

(ii) Prices at which sales are currently or were last made to the general buying public.

(41) "Evaluated bid price" means the dollar amount of a bid after bid price adjustments are made under objectively measurable criteria.

(42) "Expedited procurement" means the process set forth in COMAR 21.05.06.

(43) "Extension" as applied to contracts for the performance of architect/engineer services, means a change in the scope of the services to be performed by the architect/engineer by including in the contract a requirement for the performance of phases of services not previously included.

(44) "Fund availability" means monies that are currently credited to the procurement agency and are contained within the proper object of expenditure.

(45) Repealed.

(46) "Grant" means the bestowing of a power, money, privilege, property, or other item of value that may be conditional, although without other consideration, by the State upon another party. Grants are identified specifically by formula or specific allocation in law or in the annual operating budget act, bond authorizations, or other acts of the legislature. A grant as defined here is not a contract for purposes of this title.

(47) "Human services" means services procured by the Departments of Health and Mental Hygiene, Human Resources, Labor, Licensing, and Regulation, Juvenile Services, Disabilities, or Aging in order to provide support, care, or shelter directly to third-party clients under a contract the primary purpose of which is the direct provision of these services.

(47-1) "Information technology" means all electronic information processing, including:

(a) Maintenance;

(b) Telecommunications;

(c) Hardware;

(d) Software; and

(e) Associated services.

(48) "Invitation for bids" means any documents, whether attached or incorporated by reference, used for soliciting bids under procurement by competitive sealed bidding and small procurement procedures including requests for quotations.

(49) "Invitation for quotation" means invitation for bids.

(50) "Invoice" means a contractor's written request for payment for supplies, commodities, services, maintenance, construction, construction-related services, architectural services, or engineering services performed or provided.

(51) "Lease" means a contract under which the State uses real or personal property to which the State does not have title. "Lease" does not include lease-purchase or similar financing transactions.

(52) "Lease of real property" means the State's acquisition or modification of a leasehold interest, either permanent or temporary, in land, structures, or facilities, including a sublease.

(52-1) "Local Jurisdiction" means a county or a government entity which:

(a) Is a unit of government responsible for an area situated solely within a single county;

(b) Has a governing body elected independently of the county government;

(c) Is financed with revenues secured in whole or in part from special taxes or assessments levied on real property situated within the area;

(d) Performs municipal services for the residents of the area; and

(e) Was not created for limited or special purposes.

(53) "Maintenance" means any work necessary for the continued operation or upkeep of a facility, structure, building, grounds, or building system, including built-in equipment or an in-ground system, that is not included within the definition of construction.

(54) Minority Business Enterprise (MBE).

(a) "Minority business enterprise (MBE)" means any legal entity, other than a joint venture, organized to engage in commercial transactions which is:

(i) At least 51 percent owned and controlled by one or more individuals who are socially and economically disadvantaged; and

(ii) Managed by, and the daily business operations of which are controlled by, one or more of the socially and economically disadvantaged individuals who own it.

(b) "Minority business enterprise (MBE)" includes a not-for-profit entity organized to promote the interests of physically or mentally disabled individuals.

(55) Repealed.

(56) "Most advantageous" means that proposal received from a responsible offeror that is determined to be most beneficial to the State considering price and evaluation criteria set forth in the request for proposals.

(57) "Most favorable" means that bid received from a responsible bidder that is the lowest bid price or lowest evaluated bid price or the bid or evaluated bid that yields the greatest revenue for the State under a revenue-producing procurement contract subject to this title.

(58) "Multiple award" means the award of contracts to more than one vendor for the same goods or labor.

(59) "Multiyear contract" means a contract that requires appropriations for more than 1 fiscal year.

(60) "Objectively measurable criteria" means standards, not matters of opinion or subjective judgment, that enable the State to compare the economy, effectiveness, or value of the subject of the solicitation and includes reliability, operational costs, maintainability, useful life, and residual value.

(61) "Option" means the unilateral right of the State under a contract to extend the contract for an additional period of time, or to purchase delimited additional goods or labor, or to purchase materials or facilities that have been leased.

(62) "Oral bids" means bids which are proposed by a means other than by writing.

(63) "Partial or progressive awards" means a split award of a term contract to more than one vendor.

(64) "Person" means any individual, or a corporation, partnership, sole proprietorship, joint stock company, joint venture, unincorporated association, union, committee, club, or other organization or legal entity.

(64-1) "Primary procurement unit" means:

(a) The State Treasurer;

(b) The Department of General Services;

(c) The Department of Transportation;

(d) The Maryland Port Commission;

(e) Morgan State University;

(f) St. Mary's College of Maryland; and

(g) The University System of Maryland.

(65) "Procurement" includes all functions that pertain to the process of leasing real property as a lessee, and the process of buying, leasing as lessee, purchasing, or otherwise obtaining any supplies, services, construction, construction-related services, architectural services, engineering services, or services provided under an energy performance contract, including description of requirements, selection, and solicitation of sources, preparation and award of contract, and all phases of contract administration.

(66) "Procurement agency" means any principal department or independent unit of the Executive Branch of the State, not otherwise exempted from application of this title, that is authorized by law or regulations to procure.

(66-1) Procurement Contract.

(a) "Procurement contract" means an agreement in any form entered into by a unit for procurement.

(b) "Procurement contract" does not include:

(i) A collective bargaining agreement with an employee organization;

(ii) An agreement with a contractual employee as defined in State Personnel and Pensions Article, § 1-101(e), Annotated Code of Maryland; or

(iii) A Medicaid, Judicare, or similar reimbursement contract for which law sets user or recipient eligibility and price payable by the State.

(67) "Procurement officer" means any person authorized by a procurement agency in accordance with law or regulations to formulate, enter into, or administer contracts or make written determinations and findings with respect to them. The term also includes an authorized representative acting within the limits of authority.

(68) "Proposal" means the response by an offeror to a request for proposals issued by a procurement agency to obtain goods or labor. The response may include but is not limited to an offeror's price and terms for the proposed contract, a description of technical expertise, work experience, and other information as requested in the solicitation.

(69) "Public improvement" means the construction, maintenance, and repair of any building, structure, or other public work now or hereafter constructed or acquired by the State or any State agency.

(70) "Purchase order" means a purchaser's document authorizing a procurement from a vendor. Upon acceptance by a vendor, the purchase order becomes a contract.

(71) "Quotation" means bid.

(72) "Regulation" has the same definition as set forth in State Government Article, § 10-101(3), Annotated Code of Maryland.

(73) "Reinstatement" means adding to a contract for services an add alternate bid which had been rejected at the time of award of the contract.

(74) "Request for bids" means invitation for bids.

(75) "Request for proposals" means any document, whether attached or incorporated by reference, used for soliciting proposals from offerors under any method allowed under this title excluding competitive sealed bidding and comparable small procurement methods.

(76) "Request for quotation" means invitation for bids.

(77) "Responsible" means a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability that shall assure good faith performance.

(78) "Responsive" means a bid submitted in response to an invitation for bids that conforms in all material respects to the requirements contained in the invitation for bids.

(79) Services.

(a) "Services" means the rendering of time, effort, or work, rather than the furnishing of a specific physical product other than reports incidental to the required performance. It includes, but is not limited to, the professional, personal, and/or contractual services provided by attorneys, accountants, physicians, consultants, and other professionals who are independent contractors.

(b) "Services" does not include maintenance, construction-related services, architectural services, engineering services, or energy performance contract services.

(80) "Small business" means a business as defined in State Finance and Procurement Article, § 14-501(b), Annotated Code of Maryland.

(81) "Small business preference" means a purchase request for which the procurement agency invites bids from a list of qualified bidders including small businesses.

(82) "Social services" means services procured by the Departments of Health and Mental Hygiene, Human Resources, Labor, Licensing, and Regulation, Juvenile Services, Disabilities, or Aging in order to provide support, care, or shelter directly to third-party clients under a contract the primary purpose of which is the direct provision of social services.

(83) "Solicitation" means invitation for bids, request for proposals, or any other method or instrument used to communicate to potential bidders or offerors a procurement agency's procurement needs.

(84) State Agency.

(a) "State agency" means any administration, agency, association, authority, board, bureau, college, commission, committee, council, foundation, fund, department, institute, institution, public corporation, service, trust, university, or other unit of the Executive Branch of the State government and includes any subunit within any of these units.

(b) "State agency" does not mean or include bicounty, or multicounty, government agencies or political subdivisions of the State, including counties, municipalities, special tax districts, sanitary districts, drainage districts, soil conservation districts, water supply districts, and any entity organized under the general corporation laws of the State.

(84-1) "Stevedoring or terminal services" means the loading or unloading of cargo or equipment to or from vessels or the receiving, delivery, handling, or processing of cargo or equipment to or from terminals.

(85) "Supplemental agreement" means any contract modification which is accomplished by the mutual action of the parties.

(86) Supplies.

(a) "Supplies" means all tangible personal property, including equipment, and leases of equipment, including necessarily associated services.

(b) "Supplies" does not include an interest in real property or tangible personal property acquired or used in connection with an energy performance contract.

(87) Supplies and Services for Aeronautics-Related Activities.

(a) "Supplies and services for aeronautics-related activities" means supplies and services for aeronautics-related activities as defined in Transportation Article, § 5-101(e), Annotated Code of Maryland.

(b) "Supplies and services for aeronautics-related activities" includes information processing supplies and services.

(c) "Supplies and services for aeronautics-related activities" does not include:

(i) Supplies funded by proceeds from State obligation bonds and insurance; or

(ii) Banking and financial services under the authority of the State Treasurer.

(88) "Telecommunication" means the transmission of information, images, pictures, voice or data by radio, video, or other electronic or impulse means.

(89) "Telecommunications equipment, systems, and services" means any equipment, hardware, or software, and any combination of them used primarily for telecommunication, and any maintenance or services performed on this equipment, hardware, or software.

(90) "Term contract" means a standing blanket order agreement between a contractor and the State covering a specific time period through which the State may obtain a specified or unspecified amount of a supply, service, or maintenance.

(91) "Third-party clients" means persons who are receiving human, social, cultural, or educational services primarily because they are aged, indigent, disadvantaged, unemployed, mentally or physically ill, handicapped, displaced, or minors.

(92) Repealed.

(93) "Treasurer" means the Treasurer of the State of Maryland.

(94) "University" or "University of Maryland" means the University System of Maryland.

(95) "Using agency" means any State agency that uses any goods or labor procured under this title.

(96) "Vendor" means a person who desires to enter into a contract with the State.

(97) "Vendor list" means a compilation of the names and addresses of vendors that have submitted a bidder's application to a procurement agency.

(98) "Voucher" means a claim for reimbursement of funds resulting from an expenditure related to official State business.

Md. Code Regs. 21.01.02.01

Regulation .01B amended effective September 2, 1991 (18:17 Md. R. 1922); August 1, 1994 (21:15 Md. R. 1307); December 4, 1995 (22:24 Md. R. 1904); January 12, 1998 (25:1 Md. R. 17); January 26, 1998 (25:2 Md. R. 79); March 8, 1999 (26:5 Md. R. 393); October 18, 1999 (26:21 Md. R. 1631); March 18, 2002 (29:5 Md. R. 505); May 12, 2003 (30:9 Md. R. 615); April 11, 2005 (32:7 Md. R. 685); April 7, 2008 (35:7 Md. R. 751); February 23, 2009 (36:4 Md. R. 355); September 3, 2012 (39:17 Md. R. 1149);40:9 Md. R. 789, eff. 5/13/2013 ; April 28, 2014 41:8 Md. R. 473, eff. 4/28/2014 ; 41:14 Md. R. 799, eff.7/21/2014 ; amended effective 43:26 Md. R. 1449, eff. 1/2/2017; amended effective 46:5 Md. R. 310, eff. 3/11/2019; amended effective 46:14 Md. R. 621, eff. 7/15/2019; amended effective 47:13 Md. R. 643, eff. 6/29/2020; amended effective 49:18 Md. R. 819, eff. 9/5/2022; amended effective 50:18 Md. R. 800, eff. 9/18/2023