EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTING LA W.
[Brackets] indicate matter deleted from existing law.
*sb0009*
SENATE BILL 9
P2 2lr0767
SB 703/21 – EHE (PRE–FILED)
By: Senator West
Requested: October 15, 2021
Introduced and read first time: January 12, 2022
Assigned to: Budget and Taxation
A BILL ENTITLED
AN ACT concerning 1
Procurement – Minority Business Enterprises – Qualification and Certification 2
FOR the purpose of requiring the Board of Public Works to adopt regulations to require the 3
certification of a business as a minority business enterprise in a certain manner if 4
the business has obtained a certain federal certification and remains certified; and 5
generally relating to procurement by minority businesses. 6
BY repealing and reenacting, with amendments, 7
Article – State Finance and Procurement 8
Section 14–303 9
Annotated Code of Maryland 10
(2021 Replacement Volume) 11
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 12
That the Laws of Maryland read as follows: 13
Article – State Finance and Procurement 14
14–303. 15
(a) (1) (i) In accordance with Title 10, Subtitle 1 of the State Government 16
Article, the Board shall adopt regulations consistent with the purposes of this Division II 17
to carry out the requirements of this subtitle. 18
(ii) The Board shall keep a record of information regarding any 19
waivers requested in accordance with § 14–302(a)(9)(i) of this subtitle and subsection 20
(b)(12) of this section and submit a copy of the record to the General Assembly on or before 21
October 1 of each year, in accordance with § 2–1257 of the State Government Article. 22
2 SENATE BILL 9
(2) The regulations shall establish procedures to be followed by units, 1
prospective contractors, and successful bidders or offerors to maximize notice to, and the 2
opportunity to participate in the procurement process by, a broad range of minority 3
business enterprises. 4
(b) These regulations shall include: 5
(1) provisions: 6
(i) designating one State agency to certify and decertify minority 7
business enterprises for all units through a single process that meets applicable federal 8
requirements, including provisions that promote and facilitate the submission of some or 9
all of the certification application through an electronic process; 10
(ii) for the purpose of certification under this subtitle, that promote 11
and facilitate certification of minority business enterprises that have received certification 12
from a federal or a county program that uses a certification process substantially similar 13
to the process established in accordance with item (i) of this item, including a provision that 14
[provides for] REQUIRES certification of a business as a minority business enterprise 15
WITHOUT REQUIRING TH E BUSINESS TO FILE A NY ADDITIONAL PAPERW ORK OTHER 16
THAN EVIDENCE OF CER TIFICATION UNDER THE FEDERAL DISADVANTAGED 17
BUSINESS ENTERPRISE PROGRAM if the business[: 18
1.] has obtained certification AND REMAINS CERTIFIE D 19
under the federal Disadvantaged Business Enterprise Program; [and 20
2. meets the eligibility requirements of the Minority 21
Business Enterprise Program;] 22
(iii) requiring the agency designated to certify minority business 23
enterprises to complete the agency’s review of an application for certification and notify the 24
applicant of the agency’s decision within 90 days of receipt of a complete application that 25
includes all of the information necessary for the agency to make a decision; and 26
(iv) authorizing the agency designated to certify minority business 27
enterprises to extend the notification requirement established under item (iii) of this item 28
once, for no more than an additional 60 days, if the agency provides the applicant with a 29
written notice and explanation; 30
(2) a requirement that the solicitation document accompanying each 31
solicitation set forth the expected degree of minority business enterprise participation 32
based, in part, on the factors set forth in § 14–302(a)(3)(ii) of this subtitle; 33
(3) a requirement that bidders or offerors complete a document setting 34
forth the percentage of the total dollar amount of the contract that the bidder or offeror 35
agrees will be performed by certified minority business enterprises; 36 SENATE BILL 9 3
(4) a requirement that within 10 days after notice from the prime 1
contractor of the State’s intent to award a contract, each minority business enterprise 2
serving as a subcontractor on the contract complete a document setting forth the percentage 3
and type of work assigned to the subcontractor under the contract and submit copies of the 4
completed form to both the procurement officer and the contractor; 5
(5) a requirement that the solicitation documents completed and submitted 6
by the bidder or offeror in connection with its minority business enterprise participation 7
commitment must be attached to and made a part of the contract; 8
(6) (i) a requirement that all contracts containing minority business 9
enterprise participation goals shall contain a liquidated damages provision that applies in 10
the event that the contractor fails to comply in good faith with the provisions of this subtitle 11
or the pertinent terms of the applicable contract; and 12
(ii) a provision that prohibits a unit from assessing liquidated 13
damages for an indefinite delivery contract or an indefinite performance contract if a unit 14
fails to request the performance or delivery of a task for which: 15
1. a minority business enterprise subcontractor was named 16
on the participation schedule; or 17
2. a minority business enterprise subcontractor was named 18
on the participation schedule and qualified based on the subcontractor’s existing North 19
American Industry Classification System code; 20
(7) a requirement that the unit provide a current list of certified minority 21
business enterprises to each prospective contractor; 22
(8) provisions to ensure the uniformity of requests for bids on subcontracts; 23
(9) provisions relating to the timing of requests for bids on subcontracts 24
and of submission of bids on subcontracts; 25
(10) provisions designed to ensure that a fiscal disadvantage to the State 26
does not result from an inadequate response by minority business enterprises to a request 27
for bids; 28
(11) provisions relating to joint ventures, under which a bidder may count 29
toward meeting its minority business enterprise participation goal, the minority business 30
enterprise portion of the joint venture; 31
(12) consistent with § 14–302(a)(9) of this subtitle, provisions relating to any 32
circumstances under which a unit may waive obligations of the contractor relating to 33
minority business enterprise participation; 34
4 SENATE BILL 9
(13) provisions requiring a monthly submission to the unit by minority 1
business enterprises acknowledging all payments received in the preceding 30 days under 2
a contract governed by this subtitle; 3
(14) a requirement that a unit shall verify and maintain data concerning 4
payments received by minority business enterprises, including a requirement that, upon 5
completion of a project, the unit shall compare the total dollar value actually received by 6
minority business enterprises with the amount of contract dollars initially awarded, and 7
an explanation of any discrepancies therein; 8
(15) a requirement that a unit verify that minority business enterprises 9
listed in a successful bid are actually participating to the extent listed in the project for 10
which the bid was submitted; 11
(16) provisions establishing a graduation program based on the financial 12
viability of the minority business enterprise, using annual gross receipts or other economic 13
indicators as may be determined by the Board; 14
(17) a requirement that a bid or proposal based on a solicitation with an 15
expected degree of minority business enterprise participation identify the specific 16
commitment of certified minority business enterprises at the time of submission; 17
(18) provisions promoting and providing for the counting and reporting of 18
certified minority business enterprises as prime contractors; 19
(19) provisions establishing standards to require a minority business 20
enterprise to perform a commercially useful function on a contract; 21
(20) a requirement that each unit work with the Governor’s Office of Small, 22
Minority, and Women Business Affairs to designate certain procurements as being 23
excluded from the requirements of § 14–302(a) of this subtitle; 24
(21) provisions promoting and providing for the counting and reporting of 25
minority business enterprises certified as both a woman–owned business and a business 26
owned by a member of an ethnic or racial group in accordance with § 14–302(a)(5) of this 27
subtitle; and 28
(22) other provisions that the Board considers necessary or appropriate to 29
encourage participation by minority business enterprises and to protect the integrity of the 30
procurement process. 31
(c) The regulations adopted under this section shall specify that a unit may not 32
allow a business to participate as if it were a certified minority business enterprise if the 33
business’s certification is pending. 34
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 35
October 1, 2022. 36