Md. Code Regs. 21.11.03.12

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

Section 21.11.03.12 - Amendment of MBE Participation Schedule

A. If at any time after submission of a bid or proposal and before execution of a contract, a bidder or offeror determines that a certified MBE listed on the MBE participation schedule required under Regulation .09C(3) of this chapter has become or will become unavailable or ineligible to perform the work required under the contract, then the bidder or offeror:

(1) Within 72 hours of making the determination, shall provide written notice to the procurement officer; and

(2) Within 5 business days of making the determination, may make a written request to the procurement officer to amend the MBE participation schedule.

B. For purposes of this regulation, "ineligible" means an MBE certified by the certification agency that may not be counted toward meeting the MBE subcontract participation goal established for the procurement because:

(1) The MBE is not certified by the certification agency to provide the services, materials, or supplies the bidder or offeror has committed the MBE to provide on the MBE participation schedule;

(2) The MBE has graduated from the NAICS Code associated with the services, materials, or supplies the bidder or offeror has designated the MBE to provide; or

(3) The MBE no longer meets the personal net worth requirements of Regulation .03 of this chapter.

C. The request to amend the MBE participation schedule shall include:

(1) An explanation of the reason for inclusion of the unavailable or ineligible firm on the original MBE participation schedule;

(2) The name of each certified MBE subcontractor that will substitute for the unavailable or ineligible certified MBE subcontractor;

(3) A description of work to be performed by each certified MBE subcontractor;

(4) The percentage of the contract to be paid to the certified MBE subcontractor for the work or supply; and

(5) A full description of the bidder's or offeror's efforts to substitute another certified MBE subcontractor to perform the work that the unavailable or ineligible certified MBE subcontractor would have performed.

D. The procurement officer shall consult with the MBE liaison before deciding whether to approve a request to amend the MBE participation schedule.

E. Amendments to the MBE participation schedule occurring after the date of contract award.

(1) For purposes of this regulation, "good cause" includes documented nonperformance by the certified MBE or election by the certified MBE to cease work on the contract. Failure of the certified MBE to provide a bond as requested by the contractor is not considered to be nonperformance by the certified MBE if the requested bond violates State Finance and Procurement Article, § 13-227, Annotated Code of Maryland.

(2) A contractor may not terminate or otherwise cancel the contract of a certified MBE listed on the MBE participation schedule without:

(a) Showing good cause why the contract with the certified MBE should be terminated or cancelled;

(b) Obtaining the prior written consent of the MBE liaison;

(c) Obtaining approval of the head of the unit; and

(d) Subsequently amending the contract.

(3) The procurement agency shall send a copy of the MBE liaison written consent to the Office of Minority Affairs.

Md. Code Regs. 21.11.03.12

Regulation .12 amended effective April 7, 2008 (35:7 Md. R. 751); December 12, 2011 (38:25 Md. R. 1582)
Regulation .12-1 adopted effective December 12, 2011 (38:25 Md. R. 1582)
Regulation .12C, E amended effective 40:9 Md. R. 789, eff.5/13/2013 ; amended effective 46:5 Md. R. 310, eff. 3/11/2019