Md. Code Regs. 21.11.03.09

Current through Register Vol. 51, No. 12, June 14, 2024

Section 21.11.03.09 - Procurement Solicitations

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.

Md. Code Regs. 21.11.03.09

Regulation .09 amended effective December 12, 2011 (38:25 Md. R. 1582);40:9 Md. R. 789, eff. 5/13/2013
Regulation .09A amended effective July 26, 2010 (37:15 Md. R. 1000);40:16 Md. R. 1345, eff. 8/19/2013
Regulation .09C amended effective April 7, 2008 (35:7 Md. R. 751); January 14, 2010 (37:1 Md. R. 16); May 31, 2010 (37:11 Md. R. 766)
Regulation .09E amended effective April 7, 2008 (35:7 Md. R. 751); amended effective 43:26 Md. R. 1449, eff. 1/2/2017; amended effective 46:14 Md. R. 621, eff. 7/15/2019; amended effective 47:13 Md. R. 643, eff. 6/29/2020; amended effective 50:18 Md. R. 800, eff. 9/18/2023