3.1 Order of Considerations
3.2 Fund Certification
3.3 Addressing Delegated Purchasing Authority
3.4 Selecting the Solicitation Method
3.5 Planning the Solicitation
3.1 Order of Considerations
3.1.1 State Resources
Before engaging in contracting, an agency should consider whether it can meet its needs with State resources, including utilizing existing employees, Interagency Agreements or MOUs (see Section 2.2).
See COMAR 21.02.03.02(C) (7) and Md. State Personnel and Pensions Code Ann. §13-402.
3.1.2 Existing State Contracts
The agency should determine if there is an existing Statewide contract already in place from which the agency can procure the needed goods or services.
See, e.g., https://procurement.maryland.gov/professional-services-statewide-contracts/ for professional services contracts; http://doit.maryland.gov/contracts/Pages/AllMasterContracts.aspx for IT contracts; and https://dgs.maryland.gov/Pages/Procurement/BidsAwards.aspx for commodities and maintenance contracts.
3.1.3 Preferred Providers
When the State cannot meet its own needs and does not already have a Statewide contract in place, an agency must consider whether the need can be met by a preferred provider before proceeding to a competitive procurement.
The order of priority for preferred providers is as follows:[21]
- Maryland Correctional Enterprises (MCE) (https://mce.md.gov/);
- Blind Industries and Services of Maryland (BISM) (https://www.bism.org/);
- Community Service Providers (Maryland Works) (http://www.mdworks.com/); and
- An individual-with-disability-owned business.
3.1.4 SBR Certified Businesses
If none of the options above can provide the required goods or services, an agency may conduct a competitive procurement and should first consider designating the procurement as an SBR procurement. The list of certified small businesses can be found on eMMA through a Vendor Search by clicking “SBR Vendor”. (See Section 1.4.2.)
3.2 Fund Certification
COMAR 21.03.03.01 – Certification Requirement:
Every contract, contract modification, change order, or adjustment in contract price is subject to prior written approval by the responsible manager as designated by the using agency and certification by the appropriate fiscal authority as to the availability of funds and to the effect of the modification, change, or adjustment on the project budget or the total construction cost. If the certification discloses a resulting increase in the project budget or total construction cost, the procurement officer may not execute or make the modification, change, or adjustment unless sufficient funds are available, or the scope of the project is adjusted to permit its completion within the project budget.
3.2.1 Fund Sources
The State has several sources of funding[22] and includes the following:
- General Funds
State funds that may be used for any activity of the State. State income and sales tax revenues are the primary sources of General Funds. About half of State spending is attributable to the General Fund.
- Special Funds
Revenues dedicated to a specific purpose, such as licensing fees or certain tax revenues that may only be used for the purposes designated by law. For example, property transfer tax revenues are dedicated to Program Open Space and other specific uses. Similarly, the Transportation Trust Fund, a special fund, is supported by fuel tax and other transportation-related revenues.
- Federal Funds
Grants and other payments from the federal government that are expended through the State budget to fund various activities funded by the federal government. Such funds are subject to applicable federal laws and regulations. Federal funds often require a State funding match. Before an agency can spend these funds, its budget must contain a Federal Fund Appropriation for at least the amount of funds to be spent. Medicaid and transportation programs are the largest sources of federal funding in the State budget. Where the federal funding is for transportation programs, the pertinent Maryland Department of Transportation (MDOT) modal administrations (the Maryland Aviation Administration, Maryland Transit Administration, and State Highway Administration) must apply the federal DBE Program consistent with the MDOT DBE Program Manual, which is available at DBE_Manual_March_2021.pdf (maryland.gov).[23]
3.2.2 State Grants
Funds disbursed by the State directly to units of local government, nonprofits, and to individuals for specific purposes.
3.3 Addressing Delegated Purchasing Authority
In general, purchasing authority is delegated to the agencies without BPW approval as follows:
- Small Procurements (up to $100,000);
- Emergency Procurements;*
- Sole Sources $100,000 and below;* and
- Most other procurements $200,000 and under, except for single bids/proposals that exceed $50,000 on competitive procurements.*
*Control Agency or Chief Procurement Officer (CPO) approval may be required.
Guidance on Delegated Authority can be found through the following web links:
https://procurement.maryland.gov/wp-content/uploads/sites/12/2024/04/DGS-OSP-BPW-Approval-Authority-Chart-Revised-10-17-2024.pdf
https://procurement.maryland.gov/osp-bpw-submission/
3.4 Selecting the Solicitation Method
3.4.1 Small Procurement (SP) Categories (COMAR 21.05.07.04)
Procurements which do not exceed $100,000 in price are termed “Small Procurements” (SP).[24] All State agencies have authority to make awards of SP contracts, regardless of the method of source selection, i.e., competitive, sole source, or emergency procedures. Note that procurements may not be artificially divided in order to use the SP method and circumvent requirements applicable to procurements exceeding $100,000. In all SPs, competition should be sought to the extent practical considering factors such as availability of vendors, dollar value of the procurement, cost of administering the procurement, and time available to make the procurement including delivery time. See COMAR 21.05.07.06I for record retention requirements application to SPs.
Contract requirements and other information on SP can be found here:
https://dsd.maryland.gov/Pages/COMARSearch.aspx#k=21.05.07#l=1033#s=11
Inclusion of Minority, Women, Veteran-owned and Small Businesses
Certified MBEs, VSBEs and small businesses should be contacted in addition to any other prospective vendors to solicit bids/offers.
Any SP may be designated as an SBR procurement.
Category I – ($1 to $5,000 range)
A procurement up to $5,000 is a Category I SP, which can be awarded solely at the discretion and authority of an authorized purchaser, including procurement officers and/or designated Corporate Purchasing Card (CPC) holders. It is encouraged that purchasers/procurement officers seek more than one price quote and solicit quotes from certified minority-owned, veteran-owned and small businesses.
In accordance with BPW Advisory 1998-1, purchases made under this category should be paid by using a CPC. http://bpw.maryland.gov/Pages/adv-1998-1.aspx
CPC purchases must be made consistent with the “Corporate Purchasing Card Program Policy and Procedures Manual” found on the Comptroller’s “Corporate Purchasing Card Program” page.
https://www.marylandtaxes.gov/state-agency-accounting/corporate-purchasing-card-program.php
Category II – ($5,000+ to $15,000 range)
A procurement exceeding $5,000 up to $15,000 is a Category II SP. Procurement officers should obtain responsive bids or acceptable offers from at least two vendors by oral or written solicitation. Awards shall be made to the most favorable or evaluated bid price or most advantageous offer, as specified in the solicitation. This solicitation can be in person, or by phone, fax, mail, bid board notice, electronic (email/website) notice, advertising in a publication such as a newspaper or trade journal, etc. The solicitation information should be consistently described to all prospective bidders or offerors; i.e., the same information should be provided to all prospective bidders or offerors. All Category II SP contracts must be in writing.
| Best Practice Tip: Prepare a written description of what is needed and provide that information to all prospective bidders or offerors, either by reading over the telephone or sending a written request. |
| Best Practice Tip: Obtain either the lowest feasible bid or the best possible offer from as many prospective bidders/offerors as reasonably possible. |
| Best Practice Tip: Use the “Quick Quote” function in eMMA to solicit specific prospective bidders or offerors or all available prospective bidders or offerors in eMMA for the requested product code to obtain either the lowest feasible bid or the best possible offer. If eMMA is used to publish the solicitation, the award should also be published in eMMA. |
There is no required minimum time frame; at the discretion of the procurement officer, the prospective vendors can be contacted and asked for an immediate response or given a few hours or days to provide a response.
Category III – ($15,000+ to $100,000 range)
A procurement exceeding $15,000 up to $100,000 is a Category III SP. Procurement officers should obtain responsive bids or acceptable offers from at least two vendors by written solicitation. Awards shall be made to the most favorable bid price or most favorable evaluated bid price or most advantageous offer, as specified in the solicitation. All Category III SP contract awards must be in writing. Additional Category III SP requirements include:
- There must be a notice of the procurement opportunity in eMMA at least three days before bids/offers are due.
- There must be a written solicitation.
| Best Practice Tip: Obtain either the lowest feasible bid or the best possible offer from as many prospective bidders/offerors as reasonably possible. |
| Best Practice Tip: Procurement opportunities published on eMMA should also have the award published on eMMA to close out the project and use other contracting features available in the eProcurement system to eventually include reporting and invoicing. |
3.4.2 Competitive Sealed Bidding (CSB)
Competitive sealed bidding (CSB) is the procurement method used where the contract is awarded to the responsible bidder submitting a responsive bid with the most favorable bid price.[25]
Whenever a procurement is based on CSB, a procurement officer shall seek bids by issuing an Invitation for Bids (IFB). An IFB shall include the following:
- Detailed specifications of the goods or services to be procured; and
- Whether the contract will be awarded based on the most favorable bid price[26] or the most favorable evaluated bid price.
If the contract will be based on evaluated bid price, the IFB must specify the objective measurable criteria by which the most favorable evaluated bid price will be determined.
For an IFB, the time required to identify a successful bidder is relatively short may be only six to nine months from conception to contract award. Without a detailed technical evaluation, comparison of bids submitted in response to an IFB is generally done expeditiously. The procurement officer opens the bids in public, examines them for compliance, and confirms that the successful bid is responsive, and the successful bidder is responsible and meets minimum qualifications, if any, and determines that there are no exceptions from the requirements of the work specified.
3.4.3 Multi-Step Competitive Sealed Bidding (MS-IFB)
Multi-step competitive sealed bidding (MS-IFB) is a variation of competitive sealed bidding by which each bidder submits an unpriced technical offer, sample, or both to be evaluated by the procurement officer to confirm if it is acceptable under the criteria set forth in the IFB (Phase One). After the Phase One evaluation is complete, the procurement officer opens only the price submissions for those offers that have been deemed acceptable (Phase Two).
The technical offers, samples, or both are submitted in a separate sealed envelope from the sealed price submission. Price submissions may be requested at the same time as the technical offers or requested only from the acceptable offerors. If price submissions are requested at the same time as technical offers, pricing must remain sealed until the public opening.
The technical review is a pass or fail determination based upon the contents of the bidder’s technical offer and the bidder’s responsibility. Clarifications of the technical offer may be requested of the bidder(s). If the procurement officer deems the bidder’s technical offer not acceptable, the price submission remains unopened and shall be returned to the bidder upon request, after the procurement has been concluded.
All technical offers deemed acceptable will have their price submissions publicly opened by the procurement officer at a designated time and place. The responsible bidder that submits the lowest responsive bid that is deemed technically acceptable is recommended for award of the contract.
3.4.4 Competitive Sealed Proposals (CSP)
Competitive sealed proposals (CSP) is the procurement method used where a contract is awarded based upon the best value to the State. A contract procured by the CSP method is awarded to the responsible offeror whose proposal is determined to be the most advantageous to the State, considering the price and the evaluation factors set forth in the request for proposals.[27] Whenever a procurement is based on CSPs, a procurement officer will seek proposals by issuing a Request for Proposals (RFP). The CSP method allows the State the ability to choose the best solution in light of both the technical and financial proposals submitted by offerors. Those proposals are independently evaluated by a committee that advises the procurement officer in determining the most advantageous offer.
The method works well for procurements when price alone cannot adequately determine the best outcome. See COMAR 21.05.03.01. It allows for discussion and clarifications with offerors about their proposals and for BAFOs (best and final offers) whereby offerors can modify their offers to reflect their best prices or any changes to the scope of work. It is perhaps the most flexible procurement method available, but it may entail a longer procurement process because of the necessity of establishing a committee and the process of evaluating proposals.
3.4.5 Master Contracts
Master contracting is a procurement method available to a Designated Procurement Unit that provides for the qualification of bidders and offerors for the procurement of services, supplies, or commodities. Awards for work are made through a secondary competition process. Following the award of the Master Contract, an agency may then issue a secondary competition solicitation to the Master Contractors. Master contracting streamlines the traditional CSB or CSP procurement method in order to achieve cost and/or administrative efficiencies for the State.
Secondary competition solicitations must be issued to all Master Contractors prequalified by the State to provide the specific goods or services requested (functional areas). Secondary competition is solicited in one of three forms, as defined for use in a given Master Contract:
- Task Order Request for Proposal (TORFP);
- Purchase Order Request for Proposal (PORFP); or
- Request for Resumes (RFR).
3.4.5.1 TORFP
A TORFP is generally used where there is a scope of work for products and/or services that require Master Contractors to submit a complete solution, which is then evaluated for the best value to the State. TORFP procedure follows the general rules of CSP. The TORFP, like CSP, establishes the scope, additional terms and conditions, qualifications, and instructions for responding offerors, and the evaluation criteria by which award will be made.
The successful Master Contractor under the TORFP is awarded a Task Order Agreement, which may not exceed the period of performance or unit prices of the reference Master Contract. TORFPs may include renewal options, and awards may be made to more than one Master Contractor, if indicated in the TORFP. TORFP procedures may include the use of Pre-Proposal Conferences, Question & Answer periods, Reading/Bid Rooms, Oral Presentations, Cures, Clarifications, Discussions, Negotiations, BAFOs, and Debriefings.
3.4.5.2 PORFP
A PORFP is generally used when desired products/services are readily available at a fixed price, typically as defined in a catalog or price sheet of the Master Contract. PORFP procedure follows the general rules of CSB. The PORFP, like CSB, defines the list of items desired, delivery terms and conditions, qualifications of and instructions for responding offerors, and generally award is based on lowest price technically acceptable.
The successful Master Contractor under the PORFP is awarded a Purchase Order, which may not exceed the period of performance or ceiling value of the reference Master Contract. PORFPs may include renewal options and/or optional quantities, and award may be made to more than one Master Contractor, if indicated in the PORFP.
3.4.5.3 RFR
An RFR is generally used when the need for a temporary labor resource is required. RFRs require Master Contractors to submit resumes for qualified candidates in response to a specific Scope of Work. Resumes are evaluated, candidates interviewed to determine the candidate who provides the best value to the State. RFRs establish a scope of work, additional terms and conditions, qualifications of and instructions for responding offerors, and the evaluation criteria by which awards will be made.
The successful Master contractor under the RFR is awarded a Task Order Agreement, which may not exceed the period of performance or ceiling value of the reference Master Contract. RFRs may include renewal options, and awards may be made to more than one Master Contractor, if indicated in the RFR.
3.4.6 Sole Source Procurement
A Sole Source procurement is not permissible unless the required service/equipment/product is available from only a single source. See COMAR 21.05.05. Examples are as follows:
(1) When only one source exists which meets the requirements (e.g., proprietary items);
(2) When the compatibility of equipment, accessories, or replacement parts is the paramount consideration (e.g., original equipment manufacturer – OEM);
(3) When a sole vendor’s item is needed for trial use or testing (e.g., pilot project);
(4) When a sole vendor’s item is to be procured for resale; or
(5) When certain public utility services are to be procured and only one source exists.
The procurement officer must determine that a competitive source selection method cannot be used because there is only one available source for the contract. If there is reasonable doubt about one source, competition should be solicited.
A procurement agency recommending contract award based on the sole source method must first determine if the proposed price is fair and reasonable using either a price analysis or a cost analysis.[28] The procurement officer should conduct negotiations, as appropriate, as to price, delivery, and terms.
The procurement officer, after obtaining the approval of the agency head or designee and all other approvals required by law or regulation, may award a contract without competition to the sole source vendor.
The determination and the basis for using the sole source must be in writing. The procurement officer may document the need, duration, pricing, effectiveness and why no other vendor is suitable or acceptable to meet the need of the agency.
The procurement agency must publish notice of award in eMMA not more than 30 days after the execution and approval of the contract. This requirement does not apply to sole source procurements that fall within the small procurement regulations set forth in COMAR 21.05.07.
The procurement officer must maintain a record of all sole source procurements by fiscal year. Additional justification for sole source contracts may include:
- Continuity of Care: to provide continuity of human or social services care to current third-party clients;
- Situational: under limited circumstances when only one vendor has the practical ability to meet the State’s requirements (seek Control Agency guidance);
- Bridge: to continue work under an expired or void or voidable contract to allow time to conduct a new competitive procurement; and
- Single Bids treated as sole sources per COMAR 21.05.02.20, allowing for negotiations of price, delivery, and terms, as appropriate.
3.4.7 Intergovernmental Cooperative Purchasing Agreements (ICPA)
ICPAs are entered into by at least one governmental entity[29]. The preferred form of intergovernmental cooperative purchasing is when participating governmental entities aggregate their common requirements for purposes of maximizing economies of scale when soliciting bids or proposals. See COMAR 21.05.09 and the DGS OSP Policy: Individual Agency Requests for ICPAs.
A primary procurement unit may participate in, conduct, sponsor, or administer an ICPA. The agency can initially sponsor or participate in an ICPA if the agency procurement officer issues a determination in writing that includes: (1) sufficient evidence that the ICPA provide cost savings to the State or promote administrative efficiencies or intergovernmental cooperation, and (2) a statement that the ICPA is in the best interest of the State, and is not intended to evade the purposes of Division II. If the primary procurement unit sponsors an ICPA, the solicitation must contain all clauses, terms, and conditions required under State procurement law and the contract is awarded in the same manner as a State contract, including any other required approvals.
The use of ICPAs should not be used as a means to evade the purposes set forth under COMAR 21.01.01.03 or SFP § 13-110.
The documentation to support the written determination for approval may include at a minimum: pricing, market research, why the item is needed, the intended purpose, cost savings, efficiencies, length of the contract, and proof that the contract was competitively bid. Many ICPAs require the agency to complete a Participating Addendum and all must include the State’s Mandatory Contract Terms and Conditions.
The procurement officer, after obtaining the approval of the agency head or designee and all other approvals (BPW if over $200,000) required by law or regulation, may award the contract.
Notice of award must be published in eMMA by the procurement agency not more than 30 days after the approval and execution of the contract; and the primary procurement unit shall post the determination on the primary procurement unit’s website.
3.4.8 Noncompetitive Negotiated Procurements of Human, Social or Educational Services
When a procurement is required to provide human, social, or educational services, the procurement officer must consider the most appropriate procurement method for acquiring these services, with the preferred method being CSPs.
However, if it is determined that two or more sources for human, social, or educational services are available, but because there is an absence of effective competition, it is not expected that the available sources will respond to an IFB or CSP, COMAR 21.05.12.04 allows these selected types of services to be procured under the noncompetitive negotiated procurement method, as follows:
- An employer in a program of “On-the-Job” training for employment and training purposes;
- Group foster care services for children or adults under a negotiated rate system adopted by regulation; or
- The following services for the mentally ill:
- Residential rehabilitation services;
- Community rehabilitation services (psychosocial); or
- Therapeutic group home services for children and adolescents.
Prior to entering into a noncompetitive negotiated procurement, the director of the program must submit a request to the procurement officer justifying the need to enter into the contract(s). Upon approval of the justification by the procurement office, the procurement officer will seek approval from the Agency Head (or designee) to continue with this procurement method. Once approval is given, the procurement officer with assistance from the program will develop a Request for Expressions of Interest (REOI) notifying vendors that the agency seeks to use this procurement method. The REOI includes a scope of work developed by the program that includes the programmatic requirements; a request for proof that the prospective vendor is qualified to perform the requested services; any performance measures that will be used; and if a contract is expected to exceed $50,000, a statement to that effect.
The REOI shall be published for a minimum of 10 days before the written Expressions of Interest are due. Notice shall be sent to all potential providers including advocacy organizations. When a contract is expected to exceed $50,000, the REOI shall be published on eMMA.
As a need for the services arises, the procurement officer may:
- Conduct discussions with one or more responsible service providers that previously submitted an expression of interest; and
- Award a contract to a provider if the procurement agency head or designee, on the basis of discussions or past experience with the provider, determines that an award will be in the State’s best interest.
In the course of a particular noncompetitive negotiated procurement, the procurement officer should give responsible service providers that submitted acceptable or potentially acceptable expressions of interest fair and equal treatment with respect to discussions.
Notice of any award, regardless of amount, under this regulation shall be published in eMMA.
3.4.9 Emergency and Expedited Procurements[30]
3.4.9.1 Emergency Procurements
An emergency procurement in excess of $50,000 is permitted when a CSB or CSP procurement method cannot be used because of an emergency circumstance. An “Emergency” is defined as a sudden and unexpected occurrence or condition which agency management reasonably could not foresee that requires an action to avoid or to mitigate serious damage to public health, safety, or welfare.[31] Emergency procurements are limited to the procurement of only the types and quantities of items necessary to avoid or to mitigate such damage.
A procurement officer may award an emergency contract or make an emergency contract modification only with the approval of the agency head or designee and the Chief Procurement Officer (CPO) or designee. Refer to the DGS OSP Policy: Emergency Procurements.
Otherwise, the process for conducting an emergency procurement is similar to a Category I or II SP, allowing oral or written solicitation, and no requirement for posting a solicitation on eMMA. Despite the hastened timing of the procurement, the agency must obtain as much competition as is possible and practicable.
Following an emergency award, the procurement officer must:
- Publish a notice of award in eMMA not more than 30 days after the execution and approval of the contract;
- Make a record of the emergency procurement, including the required information set forth in COMAR 21.05.06.02D(2); and
- Prepare and forward a report of the emergency procurement to the BPW and the appropriate Control Agency within 7 or 15 days of the emergency contract award or modification based upon the value of the procurement.
3.4.9.2 Expedited Procurements
An expedited procurement in excess of $50,000 is permitted when a CSB or CSP procurement cannot be used because urgent circumstances require expedited action, and the action is in the public interest and outweighs the benefits of both CSB and CSP. Refer to the DGS OSP Policy: Expedited Procurements.
Prior to conducting an expedited procurement, the procurement officer must:
- Make a written determination, signed by the agency head or designee that explains why the expedited procurement best serves the public interest and why the need outweighs the benefits of a competitive source selection; and
- Receive approval from the BPW, via an item submitted for approval on the BPWs’ Agenda that details the expected impact upon the State if the procurement is not made on an expedited basis, including lost revenues if applicable.
Competitive solicitation of bids or offers is the preferred method of making an expedited procurement, and may include public notice and direct solicitation. Noncompetitive source selection is permitted due to time constraints or another reason that precludes use of competitive solicitation.
Following an expedited procurement award, the procurement officer must:
- Publish a notice of award in eMMA not more than 30 days after the execution and approval of the contract;
- Make a record of the expedited procurement, including the required information set forth in COMAR 21.05.06.03E (2); and
- Prepare and forward a report of the expedited procurement award to the BPW for inclusion on the Department of Transportation’s action agenda within 30 days of the expedited contract award.
3.4.10 Architectural Services and Engineering Services (A/E)
In addition to having its own section of COMAR[32] and being applicable to only the Department of Transportation and the Department of General Services, A/E procurement also has the distinction of being a “modified” version of the RFP process. While the A/E firms are asked to respond with technical proposals as a result of the RFP issued, there are additional steps in some cases, and in all cases the financial proposal is handled differently than in traditional RFPs.
The major steps of the A/E procurement process are as follows:
a. Advertisement of Expression of Interest (EOI) – the agency issues a notice to the public via eMMA that a contracting opportunity exists at the agency and requests that firms respond with their EOI. The EOIs typically contain information requested as part of the notice, and this information is then used by the agency to produce a reduced candidate list (RCL). Once the RCL is prepared, those firms making the RCL are issued the RFP and are asked to submit technical proposals.
NOTE: The EOI is an optional step under current law. If the agency desires, or if it is in the best interests of the State, the agency can proceed to advertise a notice that essentially directly issues the RFP to the public, much like a traditional RFP.
b. Review of Technical Proposals – the agency reviews the technical proposals, again, much like a traditional RFP, and determines the overall rankings of the offerors. Depending on the circumstances presented in the advertised notice, the top ranked firm or firms are then invited to submit a price proposal. This varies from the traditional RFP process, in which you would have received the sealed price proposals from the offerors at the time that the technical proposals were submitted.
c. Price Proposals – the price proposals are received and reviewed against the engineer’s estimate for the project to determine if the pricing is fair and reasonable. Negotiations are typically held at this point if there are questions or concerns about the price proposal, as opposed to the BAFOs that would be requested in a traditional RFP process.
The A/E COMAR section has provisions for contracts over $200,000 and for contracts under $200,000. The slight differences in process allow for the faster completion of the procurement of contracts under $200,000.
A/E contracts can either be project specific, or they can be indefinite quantity contracts, where the agency awards the contract to a consultant or consultants, and work assignments are issued under the contract in accordance with the scope and terms of the contract.
3.4.11 Public Private Partnerships (P3)
A Public Private Partnership (P3) is a method for delivering public infrastructure assets using a long-term, performance-based agreement between an authorized agency and a private entity where appropriate risks and benefits can be allocated in a cost-effective manner between the contractual partners. In a P3, the private entity performs functions normally undertaken by the government, but the government agency remains ultimately accountable for the public infrastructure asset and its public function. The State may retain ownership in the public infrastructure asset and the private entity may be given additional decision-making rights in determining how the asset is financed, developed, constructed, operated, and maintained over its life cycle.
The State agencies authorized to implement a P3 are the DGS, MDOT (for public infrastructure assets of any of its modal administrations), the Maryland Transportation Authority, the USM, MSU, SMCM, and Baltimore City Community College.
In general, an authorized agency may establish a P3 and execute an agreement in connection with any public infrastructure asset for which the authorized agency is responsible. Per the controlling statute[33], authorized agencies are to adopt regulations and establish process for the development, solicitation, evaluation, award, and delivery of a P3. Regulations and processes for P3s are still in progress.
Prior to issuing a public notice of solicitation for a P3, a pre-solicitation report concerning the proposed P3 must be submitted to the Comptroller, State Treasurer, budget committees, and the Department of Legislative Services, as required in statute. After the review and comment period on the pre-solicitation report, and before issuing the public notice of solicitation, the authorized agency must request the BPWs to officially designate the public infrastructure asset as a P3 and approve the solicitation method.
3.5 Planning the Solicitation
3.5.1 Timelines
When planning any procurement, consideration should be given to the time required to perform the necessary steps of the procurement. See the Timelines and Checklists for CSB and CSP Procurement Methods.[34]
IFB: Generally 6 to 9 months.
MS-IFB: Generally 9 to 12 months.
RFP: Generally 12 to 18 months.
The foregoing timelines are only guidelines. In deciding when to start a procurement, if the procurement is subject to review by a Control Agency, the procurement officer should account for extra time that may be required for review and approval by the Control Agency prior to release.
When structuring automatic reminders of when to begin a new procurement, many procurement officials use 18-months, 12-months, or 9-months based on the classification of a solicitation.
| Best Practice Tip: Always start EARLY. |
3.5.2 Selecting the Evaluation Committee Members
When an evaluation committee is desired for a procurement, the optimal number of voting members is three. The procurement officer may utilize subject matter experts, technical advisors or consultants who are not members of the evaluation committee.
Individuals should be selected to serve on an evaluation committee based upon their expertise and experience with the subject matter, varied perspectives, absence of any prejudices or conflicts of interest, and availability to commit the necessary time and attention to their responsibilities.
3.5.3 Evaluation Committee Members’ Role and Responsibilities
The procurement officer should confirm that each member of the evaluation committee is able to perform the following roles and responsibilities to conduct the initial evaluation:
- Maintain confidentiality throughout the procurement;
- Do not disclose to anyone that you are an evaluation committee member;
- Restrict communication regarding the procurement to the evaluation committee and procurement officer;
- The procurement officer is to be the sole point of communication with offerors;
- Limit communication with current contractors to management of the existing contract;
- Attend evaluation committee meetings;
- Read the RFP and all proposals received;
- Participate in discussions regarding the merits of the proposals ;
- Identify items in the proposals that need to be clarified, supplemented or addressed and review offeror responses;
- Conduct reference checks, as needed;
- Participate in oral discussions with offerors, as appropriate or necessary;
- Determine strengths and deficiencies of each proposal;
- Independently rank technical proposals and financial proposals;
- Finalize overall proposal rankings; and
- Make award recommendation to the procurement officer.
[22] See The Maryland Citizen’s Guide to the Budget: Glossary of Budget Terms — http://dbm.maryland.gov/budget/Pages/glossary.aspx
[23] Where State funding applies, MDOT and its transportation business units must also comply with the MDOT MBE Program Manual, which is incorporated by reference into COMAR pursuant to COMAR 11.01.10.01.
[24] DGS and MDOT are authorized for construction contracts up to $100,000. SFP 13-109.
[26] The most favorable bid is not necessarily the apparent lowest bid because other factors, e.g., preferences, responsiveness of the bid or bidder’s responsibility, may affect the bid.
[28] See BPW Advisory 2016-1, https://bpw.maryland.gov/Pages/adv-2016-1.aspx
[29] See COMAR 21.05.09.01.B (1)
[30] SFP §13-108; COMAR 21.05.06
[34] See the “Timelines & Checklists for CSB & CSP Procurement Methods” link on the Maryland Procurement Staff webpage: https://procurement.maryland.gov/procurement-staff/