EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
Underlining indicates amendments to bill.
Strike out indicates matter stricken from the bill by amendment or deleted from the law by
amendment.
*sb0009*
SENATE BILL 9
P2 2lr0767
SB 703/21 – EHE (PRE–FILED) CF 2lr2207
By: Senator West Senators West, Corderman, Eckardt, Edwards, Elfreth, Griffith,
Guzzone, Jackson, King, McCray, Rosapepe, Salling, Young, and Zucker
Requested: October 15, 2021
Introduced and read first time: January 12, 2022
Assigned to: Budget and Taxation
Committee Report: Favorable with amendments
Senate action: Adopted
Read second time: March 9, 2022
CHAPTER ______
AN ACT concerning 1
Procurement – Minority Business Enterprises – Qualification and Certification 2
Study 3
FOR the purpose of requiring the Board of Public Works to adopt regulations to require the 4
certification of a business as a minority business enterprise in a certain manner if 5
the business has obtained a certain federal certification and remains certified; 6
requiring the certification agency designated by the Board of Public Works to study 7
and report recommendations for streamlining the process for certification of minority 8
business enterprises; requiring certain entities to provide certain information to the 9
certification agency; and generally relating to procurement by minority businesses. 10
BY repealing and reenacting, with amendments, 11
Article – State Finance and Procurement 12
Section 14–303 13
Annotated Code of Maryland 14
(2021 Replacement Volume) 15
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 16
That the Laws of Maryland read as follows: 17
(a) (1) The certification agency designated by the Board of Public Works under 18
§ 14–303(b) of the State Finance and Procurement Article shall study options for 19
streamlining the process for certification of minority business enterprises. 20 2 SENATE BILL 9
(2) The study conducted under paragraph (1) of this subsection shall 1
include: 2
(i) a review of options to allow other State and federal certifications 3
to be accepted as satisfying a requirement for certification as a minority business 4
enterprise; and 5
(ii) recommendations to streamline and improve the process for 6
certification of a minority business enterprise that do not disadvantage Maryland 7
businesses. 8
(b) The certification agency shall submit the findings of the study required under 9
subsection (a) of this section to the Legislative Policy Committee, in accordance with § 10
2–1257 of the State Government Article, on or before December 1, 2022, so that the General 11
Assembly may review the findings and recommendations before the 2023 Regular Session. 12
Article – State Finance and Procurement 13
14–303. 14
(a) (1) (i) In accordance with Title 10, Subtitle 1 of the State Government 15
Article, the Board shall adopt regulations consistent with the purposes of this Division II 16
to carry out the requirements of this subtitle. 17
(ii) The Board shall keep a record of information regarding any 18
waivers requested in accordance with § 14–302(a)(9)(i) of this subtitle and subsection 19
(b)(12) of this section and submit a copy of the record to the General Assembly on or before 20
October 1 of each year, in accordance with § 2–1257 of the State Government Article. 21
(2) The regulations shall establish procedures to be followed by units, 22
prospective contractors, and successful bidders or offerors to maximize notice to, and the 23
opportunity to participate in the procurement process by, a broad range of minority 24
business enterprises. 25
(b) These regulations shall include: 26
(1) provisions: 27
(i) designating one State agency to certify and decertify minority 28
business enterprises for all units through a single process that meets applicable federal 29
requirements, including provisions that promote and facilitate the submission of some or 30
all of the certification application through an electronic process; 31
(ii) for the purpose of certification under this subtitle, that promote 32
and facilitate certification of minority business enterprises that have received certification 33
from a federal or a county program that uses a certification process substantially similar 34 SENATE BILL 9 3
to the process established in accordance with item (i) of this item, including a provision that 1
[provides for] REQUIRES certification of a business as a minority business enterprise 2
WITHOUT REQUIRING TH E BUSINESS TO FILE A NY ADDITIONAL PAPERW ORK OTHER 3
THAN EVIDENCE OF CER TIFICATION UNDER THE FEDERAL DISADVANTAGED 4
BUSINESS ENTERPRISE PROGRAM if the business[: 5
1.] has obtained certification AND REMAINS CERTIFIE D 6
under the federal Disadvantaged Business Enterprise Program; [and 7
2. meets the eligibility requirements of the Minority 8
Business Enterprise Program;] 9
(iii) requiring the agency designated to certify minority business 10
enterprises to complete the agency’s review of an application for certification and notify the 11
applicant of the agency’s decision within 90 days of receipt of a complete application that 12
includes all of the information necessary for the agency to make a decision; and 13
(iv) authorizing the agency designated to certify minority business 14
enterprises to extend the notification requirement established under item (iii) of this item 15
once, for no more than an additional 60 days, if the agency provides the applicant with a 16
written notice and explanation; 17
(2) a requirement that the solicitation document accompanying each 18
solicitation set forth the expected degree of minority business enterprise participation 19
based, in part, on the factors set forth in § 14–302(a)(3)(ii) of this subtitle; 20
(3) a requirement that bidders or offerors complete a document setting 21
forth the percentage of the total dollar amount of the contract that the bidder or offeror 22
agrees will be performed by certified minority business enterprises; 23
(4) a requirement that within 10 days after notice from the prime 24
contractor of the State’s intent to award a contract, each minority business enterprise 25
serving as a subcontractor on the contract complete a document setting forth the percentage 26
and type of work assigned to the subcontractor under the contract and submit copies of the 27
completed form to both the procurement officer and the contractor; 28
(5) a requirement that the solicitation documents completed and submitted 29
by the bidder or offeror in connection with its minority business enterprise participation 30
commitment must be attached to and made a part of the contract; 31
(6) (i) a requirement that all contracts containing minority business 32
enterprise participation goals shall contain a liquidated damages provision that applies in 33
the event that the contractor fails to comply in good faith with the provisions of this subtitle 34
or the pertinent terms of the applicable contract; and 35
4 SENATE BILL 9
(ii) a provision that prohibits a unit from assessing liquidated 1
damages for an indefinite delivery contract or an indefinite performance contract if a unit 2
fails to request the performance or delivery of a task for which: 3
1. a minority business enterprise subcontractor was named 4
on the participation schedule; or 5
2. a minority business enterprise subcontractor was named 6
on the participation schedule and qualified based on the subcontractor’s existing North 7
American Industry Classification System code; 8
(7) a requirement that the unit provide a current list of certified minority 9
business enterprises to each prospective contractor; 10
(8) provisions to ensure the uniformity of requests for bids on subcontracts; 11
(9) provisions relating to the timing of requests for bids on subcontracts 12
and of submission of bids on subcontracts; 13
(10) provisions designed to ensure that a fiscal disadvantage to the State 14
does not result from an inadequate response by minority business enterprises to a request 15
for bids; 16
(11) provisions relating to joint ventures, under which a bidder may count 17
toward meeting its minority business enterprise participation goal, the minority business 18
enterprise portion of the joint venture; 19
(12) consistent with § 14–302(a)(9) of this subtitle, provisions relating to any 20
circumstances under which a unit may waive obligations of the contractor relating to 21
minority business enterprise participation; 22
(13) provisions requiring a monthly submission to the unit by minority 23
business enterprises acknowledging all payments received in the preceding 30 days under 24
a contract governed by this subtitle; 25
(14) a requirement that a unit shall verify and maintain data concerning 26
payments received by minority business enterprises, including a requirement that, upon 27
completion of a project, the unit shall compare the total dollar value actually received by 28
minority business enterprises with the amount of contract dollars initially awarded, and 29
an explanation of any discrepancies therein; 30
(15) a requirement that a unit verify that minority business enterprises 31
listed in a successful bid are actually participating to the extent listed in the project for 32
which the bid was submitted; 33
SENATE BILL 9 5
(16) provisions establishing a graduation program based on the financial 1
viability of the minority business enterprise, using annual gross receipts or other economic 2
indicators as may be determined by the Board; 3
(17) a requirement that a bid or proposal based on a solicitation with an 4
expected degree of minority business enterprise participation identify the specific 5
commitment of certified minority business enterprises at the time of submission; 6
(18) provisions promoting and providing for the counting and reporting of 7
certified minority business enterprises as prime contractors; 8
(19) provisions establishing standards to require a minority business 9
enterprise to perform a commercially useful function on a contract; 10
(20) a requirement that each unit work with the Governor’s Office of Small, 11
Minority, and Women Business Affairs to designate certain procurements as being 12
excluded from the requirements of § 14–302(a) of this subtitle; 13
(21) provisions promoting and providing for the counting and reporting of 14
minority business enterprises certified as both a woman–owned business and a business 15
owned by a member of an ethnic or racial group in accordance with § 14–302(a)(5) of this 16
subtitle; and 17
(22) other provisions that the Board considers necessary or appropriate to 18
encourage participation by minority business enterprises and to protect the integrity of the 19
procurement process. 20
(c) The regulations adopted under this section shall specify that a unit may not 21
allow a business to participate as if it were a certified minority business enterprise if the 22
business’s certification is pending. 23
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 24
October 1, 2022. 25
SECTION 2. AND BE IT FURTHER ENACTED, That: 26
(a) This section applies to the following entities: 27
(1) the Natalie M. LaPrade Medical Cannabis Commission; 28
(2) the Public Service Commission; 29
(3) the Maryland Lottery and Gaming Control Commission; 30
(4) units that are parties to a public–private partnership agreement under 31
Title 10A of the State Finance and Procurement Article; and 32
6 SENATE BILL 9
(5) the Department of Budget and Management with respect to projects in 1
the capital grant program under Title 3, Subtitle 6 of the State Finance and Procurement 2
Article. 3
(b) Each entity identified under subsection (a) of this section shall provide, within 4
60 days of a request, the information the certification agency designated by the Board of 5
Public Works under § 14–303(b) of the State Finance and Procurement Article deems 6
necessary to assess the need for remedial measures. 7
(c) (1) An entity listed in subsection (a) of this section shall require licensees, 8
preapproved licensees, applicants, grantees, and other program participants to provide any 9
information deemed necessary to assess the need for remedial measures. 10
(2) The information required under paragraph (1) of this subsection may 11
include, without limitation, the following data broken down by State fiscal year for the 12
period beginning July 1, 2016, and ending June 30, 2022: 13
(i) a list of each program participant’s expenditures for each State 14
fiscal year; and 15
(ii) for each expenditure, a description of: 16
1. the work performed; 17
2. the dollar value of the expenditure; and 18
3. whether the work was performed by the program 19
participant or a contractor or subcontractor and, if performed by a contractor or 20
subcontractor, the name of the entity that performed the work. 21
(3) Each licensee, preapproved licensee, applicant, grantee, and other 22
program participant shall provide the data requested within 60 days of a request. 23
(d) An entity listed in subsection (a) of this section shall provide the data collected 24
under subsection (c) of this section to the certification agency within 10 days of receipt of 25
the data. 26
(e) (1) Data provided in accordance with this section by each licensee, 27
preapproved licensee, applicant, grantee, or other program participant shall constitute 28
confidential commercial information and confidential financial information and shall be 29
treated as confidential by the entity and the State. 30
(2) Data provided in accordance with this section may be used only for 31
purposes authorized under this section and may be disclosed to the public only in an 32
anonymized or aggregated format. 33
SENATE BILL 9 7
SECTION 3. AND BE IT FURTHER ENACTED, That this Act shall take effect July 1
1, 2022. 2
Approved:
________________________________________________________________________________
Governor.
________________________________________________________________________________
President of the Senate.
________________________________________________________________________________
Speaker of the House of Delegates.