Code of Maryland Regulations › Title 21 - STATE PROCUREMENT REGULATIONS › Subtitle 01 - GENERAL PROVISIONS › Chapter 21.01.02 - Terminology › Section 21.01.02.01 - Definitions

Current through Register Vol. 51, No. 14, July 12, 2024
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(7) Repealed.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.