HOUSE BILL 1091
P2 1lr2746
CF 1lr2112
By: Delegate Reznik
Introduced and read first time: February 5, 2021
Assigned to: Appropriations and Health and Government Operations
A BILL ENTITLED
1 AN ACT concerning
2 Emergency and Expedited Procurements – Reform
3 FOR the purpose of altering the circumstances under which a procurement officer may
4 make an emergency procurement; requiring a unit’s procurement officer to obtain
5 approval from the Chief Procurement Officer or the Chief Procurement Officer’s
6 designee before making an emergency procurement under certain circumstances;
7 requiring the Chief Procurement Officer or designee to approve or disapprove a
8 certain request within a certain time frame after receiving the request; providing
9 that if the Chief Procurement Officer or designee does not approve or disapprove a
10 certain request within a certain time frame the request shall be considered to be
11 approved; requiring a procurement officer to make reasonable efforts to solicit a
12 certain minimum number of quotes for an emergency procurement; requiring a
13 procurement officer to evaluate a certain contractor’s ability to perform the
14 requirements of an emergency procurement based on certain criteria under certain
15 circumstances; requiring a procurement officer to obtain the approval of the Board
16 of Public Works before awarding an emergency procurement contract with a certain
17 value; altering certain reporting requirements related to emergency procurement
18 contracts; adding certain reporting requirements for certain emergency procurement
19 contracts; altering the time frame within which a procurement officer must submit
20 a certain report; requiring an emergency procurement contract to include provisions
21 addressing the contractor’s ability to perform the requirements of the contract within
22 a certain time frame; limiting the term of a certain single source procurement
23 contract; authorizing the Board to hold a certain emergency meeting for a certain
24 purpose; specifying when a unit is required to publish notice of a certain emergency
25 procurement in eMaryland Marketplace; authorizing certain units of State
26 government to make a procurement on an expedited basis under certain
27 circumstances; reducing the number of days after the end of each fiscal year that a
28 primary procurement unit has to submit a certain report concerning certain
29 procurement contracts; requiring a primary procurement unit to submit the report
30 to the Chief Procurement Officer for the State instead of the Governor and the
31 General Assembly; clarifying the types of procurement contracts that must be
EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW.
[Brackets] indicate matter deleted from existing law.
*hb1091*
2 HOUSE BILL 1091
1 included in the report; requiring the report to include certain information on certain
2 types of procurements; requiring the Chief Procurement Officer, within a certain
3 number of days after the end of each fiscal year, to submit to the Governor and
4 certain committees of the General Assembly a consolidated report that includes each
5 report submitted to the Chief Procurement Officer by the primary procurement units
6 as required under this Act; requiring that a report submitted to a committee of the
7 General Assembly under this Act be submitted subject to a certain provision of law;
8 authorizing the Board to adopt certain regulations; defining a certain term; and
9 generally relating to State procurement.
10 BY repealing and reenacting, with amendments,
11 Article – State Finance and Procurement
12 Section 13–108 and 15–111
13 Annotated Code of Maryland
14 (2015 Replacement Volume and 2020 Supplement)
15 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,
16 That the Laws of Maryland read as follows:
17 Article – State Finance and Procurement
18 13–108.
19 (a) IN THIS SECTION, “EMERGENCY” MEANS AN OCCURRENCE OR A
20 CONDITION THAT CREATES AN IMMEDIATE AND SERIOUS NEED FOR SERVICES,
21 MATERIALS, OR SUPPLIES THAT:
22 (1) CANNOT BE MET THROUGH NORMAL PROCUREMENT METHODS;
23 AND
24 (2)ARE REQUIRED TO AVOID OR MITIGATE SERIOUS DAMAGE TO
25 PUBLIC HEALTH, SAFETY, OR WELFARE.
26 (B) (1) Except as provided in § 11–205 (“Collusion”), § 10–204 (“Approval for
27 designated contracts”), § 13–219 (“Required clauses – Nondiscrimination clause”), § 13–221
28 (“Disclosures to Secretary of State”), Title 16 (“Suspension and Debarment of Contractors”),
29 or Title 17 (“Special Provisions – State and Local Subdivisions”) of this article, with the
30 approval of the head of a unit, its procurement officer may make an emergency procurement
31 by any method that the procurement officer considers most appropriate to avoid or mitigate
32 serious damage to public health, safety, or welfare DUE TO UNFORESEEN CAUSES.
33 (2) (I) BEFORE MAKING AN EMERGENCY PROCUREMENT, THE
34 PROCUREMENT OFFICER SHALL OBTAIN APPROVAL OF THE USE OF EMERGENCY
35 PROCUREMENT PROCEDURES FROM THE CHIEF PROCUREMENT OFFICER, OR THE
36 CHIEF PROCUREMENT OFFICER’S DESIGNEE.
HOUSE BILL 1091 3
1 (II)
WITHIN 48 HOURS AFTER RECEIVING A REQUEST TO USE
2 EMERGENCY PROCUREMENT PROCEDURES, THE CHIEF PROCUREMENT OFFICER
3 OR DESIGNEE SHALL APPROVE OR DISAPPROVE THE REQUEST.
4 (III) IF THE CHIEF PROCUREMENT OFFICER OR DESIGNEE DOES
5 NOT APPROVE OR DISAPPROVE THE REQUEST TO USE EMERGENCY PROCUREMENT
6 PROCEDURES WITHIN 48 HOURS AFTER RECEIVING THE REQUEST, THE REQUEST
7 SHALL BE CONSIDERED TO BE APPROVED.
8 (3) The procurement officer shall:
9 (i) obtain as much competition as possible under the circumstances,
10 INCLUDING BY MAKING REASONABLE EFFORTS TO SOLICIT AT LEAST THREE ORAL
11 QUOTES;
12 (ii) limit the emergency procurement to the procurement of only
13 those items, both in type and quantity, necessary to avoid or to mitigate serious damage to
14 public health, safety, or welfare; [and]
15 (III) BEFORE
AWARDING AN EMERGENCY PROCUREMENT
16 CONTRACT TO A PROSPECTIVE CONTRACTOR, EVALUATE THE CONTRACTOR’S
17 ABILITY TO PERFORM THE REQUIREMENTS OF THE CONTRACT BASED ON:
18 1. THE LENGTH OF TIME THE CONTRACTOR HAS BEEN IN
19 BUSINESS;
20 2.
THE CONTRACTOR’S LEVEL OF EXPERIENCE
21 PROVIDING THE TYPES AND AMOUNTS OF SUPPLIES, SERVICES, MAINTENANCE,
22 COMMODITIES, CONSTRUCTION, OR CONSTRUCTION–RELATED SERVICES REQUIRED
23 UNDER THE CONTRACT; AND
24 3.
THE CONTRACTOR’S HISTORY OF SUCCESSFUL
25 PROCUREMENT CONTRACTS WITH THE STATE AND OTHER JURISDICTIONS;
26 (IV)
OBTAIN BOARD APPROVAL BEFORE AWARDING AN
27 EMERGENCY PROCUREMENT CONTRACT WITH A VALUE OF $1,000,000 OR MORE;
28 [(iii)] (V) NOT MORE THAN 15 DAYS after awarding the
29 procurement contract, submit [to the Board] a written report that gives the justification
30 for use of the emergency procurement procedure IN ACCORDANCE WITH PARAGRAPH (4)
31 OF THIS SUBSECTION; AND
32 (VI)
AS APPROPRIATE, SUBMIT WRITTEN REPORTS PROVIDING
33 STATUS UPDATES ON THE DELIVERY AND USE OF SUPPLIES OR COMMODITIES
4 HOUSE BILL 1091
1 PROCURED UNDER THE CONTRACT IN ACCORDANCE WITH PARAGRAPH (5) OF THIS
2 SUBSECTION.
3 (4) WITHIN 15 DAYS AFTER AWARDING A CONTRACT OR A CONTRACT
4 MODIFICATION, A UNIT SHALL SUBMIT TO THE BOARD, THE APPROPRIATE CONTROL
5 AGENCY, AND, IN ACCORDANCE WITH § 2–1257 OF THE STATE GOVERNMENT
6 ARTICLE, THE SENATE BUDGET AND TAXATION COMMITTEE, THE SENATE
7 EDUCATION, HEALTH, AND ENVIRONMENTAL AFFAIRS COMMITTEE, THE HOUSE
8 APPROPRIATIONS COMMITTEE, THE HOUSE HEALTH AND GOVERNMENT
9 OPERATIONS COMMITTEE, AND THE JOINT AUDIT AND EVALUATIONS COMMITTEE,
10 A REPORT THAT INCLUDES:
11 (I)THE BASIS AND JUSTIFICATION FOR THE EMERGENCY
12 PROCUREMENT, INCLUDING THE DATE THE EMERGENCY FIRST BECAME KNOWN;
13 (II)A LISTING OF SUPPLIES, SERVICES, MAINTENANCE,
14 COMMODITIES, CONSTRUCTION, OR CONSTRUCTION–RELATED SERVICES
15 PROCURED;
16 (III) THE NAMES OF ALL PERSONS SOLICITED AND A
17 JUSTIFICATION IF THE SOLICITATION WAS LIMITED TO ONE PERSON;
18 (IV)
THE PRICES AND TIMES OF PERFORMANCE PROPOSED BY
19 THE PERSONS RESPONDING TO THE SOLICITATION;
20 (V)THE NAME OF AND BASIS FOR THE SELECTION OF A
21 PARTICULAR CONTRACTOR;
22 (VI) THE AMOUNT AND TYPE OF THE CONTRACT OR CONTRACT
23 MODIFICATION;
24 (VII) A LISTING OF ANY PRIOR OR RELATED EMERGENCY
25 CONTRACTS, INCLUDING ALL CONTRACT MODIFICATIONS, EXECUTED FOR THE
26 PURPOSES OF AVOIDING OR MITIGATING THE PARTICULAR EMERGENCY,
27 INCLUDING THE AGGREGATE COSTS; AND
28 (VIII) THE IDENTIFICATION NUMBER, IF ANY, OF THE CONTRACT
29 FILE.
30 (5) IFSUPPLIES OR COMMODITIES PROCURED UNDER AN
31 EMERGENCY PROCUREMENT CONTRACT ARE NOT DELIVERED AND USED WITHIN 1
32 MONTH AFTER THE DATE THE CONTRACT IS AWARDED, THE UNIT SHALL:
HOUSE BILL 1091 5
1 (I)
PREPARE A REPORT DESCRIBING THE DELIVERY AND USE
2 STATUS OF SUPPLIES AND COMMODITIES PROCURED UNDER THE CONTRACT AT
3 LEAST ONCE PER MONTH UNTIL ALL SUPPLIES AND COMMODITIES HAVE BEEN
4 DELIVERED AND USED; AND
5 (II)
SUBMIT THE REPORTS PREPARED UNDER THIS PARAGRAPH
6 TO THE BOARD, THE APPROPRIATE CONTROL AGENCY, AND, IN ACCORDANCE WITH
7 § 2–1257 OF THE STATE GOVERNMENT ARTICLE, THE SENATE BUDGET AND
8 TAXATION COMMITTEE, THE SENATE EDUCATION, HEALTH, AND ENVIRONMENTAL
9 AFFAIRS COMMITTEE, THE HOUSE APPROPRIATIONS COMMITTEE, THE HOUSE
10 HEALTH AND GOVERNMENT OPERATIONS COMMITTEE, AND THE JOINT AUDIT AND
11 EVALUATIONS COMMITTEE.
12 (6)
A PROCUREMENT CONTRACT AWARDED UNDER THIS SUBSECTION
13 SHALL INCLUDE PROVISIONS ADDRESSING THE CONTRACTOR’S ABILITY TO
14 PERFORM THE REQUIREMENTS OF THE CONTRACT WITHIN THE EMERGENCY TIME
15 FRAME.
16 (7) THE TERM OF A SINGLE–SOURCE PROCUREMENT CONTRACT
17 AWARDED UNDER THIS SECTION MAY NOT EXCEED THE MINIMUM PERIOD OF TIME
18 NECESSARY TO AMELIORATE THE CIRCUMSTANCES THAT CREATED THE MATERIAL
19 AND SUBSTANTIAL REASONS FOR THE SINGLE–SOURCE AWARD.
20 (8) THE BOARD MAY HOLD AN EMERGENCY MEETING FOR THE
21 PURPOSE OF CONSIDERING A REQUEST TO APPROVE AN EMERGENCY
22 PROCUREMENT CONTRACT WITH A VALUE OF $1,000,000 OR MORE, AS REQUIRED
23 UNDER PARAGRAPH (3)(IV) OF THIS SUBSECTION.
24 (9) NOTWITHSTANDING SUBSECTION (E) OF THIS SECTION, ON THE
25 DAY OF THE EXECUTION AND APPROVAL OF A PROCUREMENT CONTRACT AWARDED
26 UNDER THIS SUBSECTION, OR AS SOON AS PRACTICABLE THEREAFTER, A UNIT
27 SHALL PUBLISH IN EMARYLAND MARKETPLACE NOTICE OF THE AWARD.
28 [(b)] (C) (1) Consistent with the requirements of subsection [(a)(1)] (B)(1) of
29 this section, the State Highway Administration may enter into procurement contracts
30 related to the pretreatment and removal of snow and ice as required or authorized under
31 Title 8 of the Transportation Article.
32 (2) (i) Beginning on June 30, 2016, and no later than June 30 of each
33 succeeding year, the State Highway Administration shall submit to the Board a written
34 report on the operation and effectiveness of the procurement contracts entered into under
35 this subsection during the previous year.
36 (ii) The report shall include:
6 HOUSE BILL 1091
1 1. the number of contracts awarded;
2 2. the total dollar value of the contracts awarded; and
3 3. the amount of contracting dollars expended with minority
4 business enterprises, certified small businesses, and certified veteran–owned businesses,
5 as defined under Title 14 of this article.
6 (3) The Board, in consultation with the State Highway Administration,
7 may adopt regulations to carry out the requirements of this subsection.
8 [(c)] (D) (1) Except as provided in § 11–205 (“Collusion”), § 10–204 (“Approval
9 for designated contracts”), § 13–219 (“Required clauses – Nondiscrimination clause”), §
10 13–221 (“Disclosures to Secretary of State”), Title 16 (“Suspension and Debarment of
11 Contractors”), or Title 17 (“Special Provisions – State and Local Subdivisions”) of this
12 article, with the approval of the head of the unit and the Board, [the Maryland Port
13 Commission or the Maryland Aviation Administration] A UNIT’S PROCUREMENT
14 OFFICER may make a procurement on an expedited basis if the head of the unit and the
15 Board find that:
16 (i) urgent circumstances require prompt action;
17 (ii) an expedited procurement best serves the public interest; and
18 (iii) the need for the expedited procurement outweighs the benefits of
19 making the procurement on the basis of competitive sealed bids or competitive sealed
20 proposals.
21 (2) The procurement officer shall attempt to obtain as much competition as
22 reasonably possible.
23 [(d)] (E) [Not] EXCEPT AS PROVIDED IN SUBSECTION (B)(9) OF THIS
24 SECTION, NOT more than 30 days after the execution and approval of a procurement
25 contract awarded under this section, a unit shall publish in eMaryland Marketplace notice
26 of the award.
27 [(e)] (F) For real property leases procured under this section, the term of the
28 lease shall be for the minimum period of time practicable.
29 (G) THE BOARD MAY ADOPT REGULATIONS TO CARRY OUT THIS SECTION.
30 15–111.
31 (a) Within [90] 60 days after the end of each fiscal year, each primary
32 procurement unit shall submit to the [Governor and to the General Assembly] CHIEF
HOUSE BILL 1091 7
1 PROCUREMENT OFFICER a report on each procurement contract that was awarded
2 during the preceding fiscal year, WHETHER THE PROCUREMENT WAS CONDUCTED BY
3 THE PRIMARY PROCUREMENT UNIT OR SUBJECT TO REVIEW BY THE PRIMARY
4 PROCUREMENT UNIT, and:
5 (1) was exempt from the notice requirements of § 13–103(c) of this article
6 because the procurement officer reasonably expected that the procurement contract would
7 be performed entirely outside this State and the District of Columbia;
8 (2) cost more than $100,000 and was awarded for the procurement of
9 services, construction related services, architectural services, or engineering services; or
10 (3) was awarded on the basis of:
11 (i) § 13–107 of this article (“Sole source procurement”);
12 (ii) § 13–108(a) of this article (“Emergency procurement”); or
13 (iii) § 13–108(c) of this article (“Expedited procurement”).
14 (b) (1) A report required under subsection (a)(2) or (3) of this section shall
15 include:
16 (i) the name of each contractor;
17 (ii) the type and cost of the procurement contract; and
18 (iii) a description of the procurement.
19 (2) A report required under subsection (a)(3) of this section [also] shall
20 [describe] INCLUDE:
21 (I) A DESCRIPTION OF the basis for the award;
22 (II)
THE IDENTITY OF THE DEPARTMENT OR AGENCY THAT
23 AWARDED THE CONTRACT;
24 (III) THE IDENTITY OF ANY AGENCY OFFICIAL REQUIRED TO
25 AUTHORIZE THE CONTRACT FOR AWARD;
26 (IV)
THE AWARD DATE OF THE PROCUREMENT CONTRACT AND
27 THE FINAL DATE OF THE CONTRACT TERM;
28 (V) THE DATE THE CONTRACT AWARD WAS POSTED TO
29 EMARYLAND MARKETPLACE; AND
8 HOUSE BILL 1091
1 (VI) FOR PROCUREMENTS AWARDED UNDER § 13–108(B) OF
2 THIS ARTICLE (“EMERGENCY PROCUREMENT”):
3 1.
THE NUMBER OF DAYS BETWEEN THE AGENCY
4 DECLARATION OF AN EMERGENCY PROCUREMENT AND THE CONTRACT AWARD
5 DATE;
6 2. THE DATE OF THE EMERGENCY DECLARATION FOR
7 EACH PROCUREMENT; AND
8 3.
FOR AN AWARD THAT MUST BE REPORTED TO THE
9 BOARD, THE DATE THE AWARD WAS REPORTED TO THE BOARD.
10 (C)
WITHIN 90 DAYS AFTER THE END OF EACH FISCAL YEAR, THE