EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
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Underlining indicates amendments to bill.
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amendment.
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*sb0009*
SENATE BILL 9
P2 (2lr0767)
ENROLLED BILL
— Budget and Taxation/Health and Government Operations —
Introduced by Senator West Senators West, Corderman, Eckardt, Edwards, Elfreth,
Griffith, Guzzone, Jackson, King, McCray, Rosapepe, Salling, Young, and
Zucker
Read and Examined by Proofreaders:
_______________________________________________
Proofreader.
_______________________________________________
Proofreader.
Sealed with the Great Seal and presented to the Governor, for his approval this
_______ day of _______________ at ________________________ o’clock, ________M.
______________________________________________
President.
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 2 SENATE BILL 9
Section 14–303 1
Annotated Code of Maryland 2
(2021 Replacement Volume) 3
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 4
That the Laws of Maryland read as follows: 5
(a) (1) The certification agency designated by the Board of Public Works under 6
§ 14–303(b) of the State Finance and Procurement Article shall study options for 7
streamlining the process for certification of minority business enterprises. 8
(2) The study conducted under paragraph (1) of this subsection shall 9
include: 10
(i) a review of options to allow other State and federal certifications 11
to be accepted as satisfying a requirement for certification as a minority business 12
enterprise; and 13
(ii) recommendations to streamline and improve the process for 14
certification of a minority business enterprise that do not disadvantage Maryland 15
businesses. 16
(b) The certification agency shall submit the findings of the study required under 17
subsection (a) of this section to the Legislative Policy Committee, in accordance with § 18
2–1257 of the State Government Article, on or before December 1, 2022, so that the General 19
Assembly may review the findings and recommendations before the 2023 Regular Session. 20
Article – State Finance and Procurement 21
14–303. 22
(a) (1) (i) In accordance with Title 10, Subtitle 1 of the State Government 23
Article, the Board shall adopt regulations consistent with the purposes of this Division II 24
to carry out the requirements of this subtitle. 25
(ii) The Board shall keep a record of information regarding any 26
waivers requested in accordance with § 14–302(a)(9)(i) of this subtitle and subsection 27
(b)(12) of this section and submit a copy of the record to the General Assembly on or before 28
October 1 of each year, in accordance with § 2–1257 of the State Government Article. 29
(2) The regulations shall establish procedures to be followed by units, 30
prospective contractors, and successful bidders or offerors to maximize notice to, and the 31
opportunity to participate in the procurement process by, a broad range of minority 32
business enterprises. 33
(b) These regulations shall include: 34
SENATE BILL 9 3
(1) provisions: 1
(i) designating one State agency to certify and decertify minority 2
business enterprises for all units through a single process that meets applicable federal 3
requirements, including provisions that promote and facilitate the submission of some or 4
all of the certification application through an electronic process; 5
(ii) for the purpose of certification under this subtitle, that promote 6
and facilitate certification of minority business enterprises that have received certification 7
from a federal or a county program that uses a certification process substantially similar 8
to the process established in accordance with item (i) of this item, including a provision that 9
[provides for] REQUIRES certification of a business as a minority business enterprise 10
WITHOUT REQUIRING TH E BUSINESS TO FILE A NY ADDITIONAL PAPERW ORK OTHER 11
THAN EVIDENCE OF CER TIFICATION UNDER THE FEDERAL DISADVANTAGED 12
BUSINESS ENTERPRISE PROGRAM if the business[: 13
1.] has obtained certification AND REMAINS CERTIFIE D 14
under the federal Disadvantaged Business Enterprise Program; [and 15
2. meets the eligibility requirements of the Minority 16
Business Enterprise Program;] 17
(iii) requiring the agency designated to certify minority business 18
enterprises to complete the agency’s review of an application for certification and notify the 19
applicant of the agency’s decision within 90 days of receipt of a complete application that 20
includes all of the information necessary for the agency to make a decision; and 21
(iv) authorizing the agency designated to certify minority business 22
enterprises to extend the notification requirement established under item (iii) of this item 23
once, for no more than an additional 60 days, if the agency provides the applicant with a 24
written notice and explanation; 25
(2) a requirement that the solicitation document accompanying each 26
solicitation set forth the expected degree of minority business enterprise participation 27
based, in part, on the factors set forth in § 14–302(a)(3)(ii) of this subtitle; 28
(3) a requirement that bidders or offerors complete a document setting 29
forth the percentage of the total dollar amount of the contract that the bidder or offeror 30
agrees will be performed by certified minority business enterprises; 31
(4) a requirement that within 10 days after notice from the prime 32
contractor of the State’s intent to award a contract, each minority business enterprise 33
serving as a subcontractor on the contract complete a document setting forth the percentage 34
and type of work assigned to the subcontractor under the contract and submit copies of the 35
completed form to both the procurement officer and the contractor; 36
4 SENATE BILL 9
(5) a requirement that the solicitation documents completed and submitted 1
by the bidder or offeror in connection with its minority business enterprise participation 2
commitment must be attached to and made a part of the contract; 3
(6) (i) a requirement that all contracts containing minority business 4
enterprise participation goals shall contain a liquidated damages provision that applies in 5
the event that the contractor fails to comply in good faith with the provisions of this subtitle 6
or the pertinent terms of the applicable contract; and 7
(ii) a provision that prohibits a unit from assessing liquidated 8
damages for an indefinite delivery contract or an indefinite performance contract if a unit 9
fails to request the performance or delivery of a task for which: 10
1. a minority business enterprise subcontractor was named 11
on the participation schedule; or 12
2. a minority business enterprise subcontractor was named 13
on the participation schedule and qualified based on the subcontractor’s existing North 14
American Industry Classification System code; 15
(7) a requirement that the unit provide a current list of certified minority 16
business enterprises to each prospective contractor; 17
(8) provisions to ensure the uniformity of requests for bids on subcontracts; 18
(9) provisions relating to the timing of requests for bids on subcontracts 19
and of submission of bids on subcontracts; 20
(10) provisions designed to ensure that a fiscal disadvantage to the State 21
does not result from an inadequate response by minority business enterprises to a request 22
for bids; 23
(11) provisions relating to joint ventures, under which a bidder may count 24
toward meeting its minority business enterprise participation goal, the minority business 25
enterprise portion of the joint venture; 26
(12) consistent with § 14–302(a)(9) of this subtitle, provisions relating to any 27
circumstances under which a unit may waive obligations of the contractor relating to 28
minority business enterprise participation; 29
(13) provisions requiring a monthly submission to the unit by minority 30
business enterprises acknowledging all payments received in the preceding 30 days under 31
a contract governed by this subtitle; 32
(14) a requirement that a unit shall verify and maintain data concerning 33
payments received by minority business enterprises, including a requirement that, upon 34
completion of a project, the unit shall compare the total dollar value actually received by 35 SENATE BILL 9 5
minority business enterprises with the amount of contract dollars initially awarded, and 1
an explanation of any discrepancies therein; 2
(15) a requirement that a unit verify that minority business enterprises 3
listed in a successful bid are actually participating to the extent listed in the project for 4
which the bid was submitted; 5
(16) provisions establishing a graduation program based on the financial 6
viability of the minority business enterprise, using annual gross receipts or other economic 7
indicators as may be determined by the Board; 8
(17) a requirement that a bid or proposal based on a solicitation with an 9
expected degree of minority business enterprise participation identify the specific 10
commitment of certified minority business enterprises at the time of submission; 11
(18) provisions promoting and providing for the counting and reporting of 12
certified minority business enterprises as prime contractors; 13
(19) provisions establishing standards to require a minority business 14
enterprise to perform a commercially useful function on a contract; 15
(20) a requirement that each unit work with the Governor’s Office of Small, 16
Minority, and Women Business Affairs to designate certain procurements as being 17
excluded from the requirements of § 14–302(a) of this subtitle; 18
(21) provisions promoting and providing for the counting and reporting of 19
minority business enterprises certified as both a woman–owned business and a business 20
owned by a member of an ethnic or racial group in accordance with § 14–302(a)(5) of this 21
subtitle; and 22
(22) other provisions that the Board considers necessary or appropriate to 23
encourage participation by minority business enterprises and to protect the integrity of the 24
procurement process. 25
(c) The regulations adopted under this section shall specify that a unit may not 26
allow a business to participate as if it were a certified minority business enterprise if the 27
business’s certification is pending. 28
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 29
October 1, 2022. 30
SECTION 2. AND BE IT FURTHER ENACTED, That: 31
(a) This section applies to the following entities: 32
(1) the Natalie M. LaPrade Medical Cannabis Commission; 33
6 SENATE BILL 9
(2) the Public Service Commission; 1
(3) the Maryland Lottery and Gaming Control Commission; 2
(4) units that are parties to a public–private partnership agreement under 3
Title 10A of the State Finance and Procurement Article; and 4
(5) the Department of Budget and Management General Services with 5
respect to projects in the capital grant program under Title 3, Subtitle 6 of the State 6
Finance and Procurement Article. 7
(b) Each entity identified under subsection (a) of this section shall provide, within 8
60 75 days of a request, the information the certification agency designated by the Board 9
of Public Works under § 14–303(b) of the State Finance and Procurement Article deems 10
necessary to assess the need for remedial measures, including the application of a program 11
to assist businesses owned by women or minorities. 12
(c) (1) An entity listed in subsection (a) of this section shall require licensees, 13
preapproved licensees, applicants, grantees, and other program participants to provide any 14
information deemed necessary to assess the need for remedial measures under subsection 15
(b) of this section. 16
(2) The information required under paragraph (1) of this subsection may 17
include, without limitation, the following data broken down by State fiscal year for the 18
period beginning July 1, 2016, and ending June 30, 2022: 19
(i) a list of each program participant’s expenditures for each State 20
fiscal year; and 21
(ii) for each expenditure, a description of: 22
1. the work performed; 23
2. the dollar value of the expenditure; and 24
3. whether the work was performed by the program 25
participant or a contractor or subcontractor and, if performed by a contractor or 26
subcontractor, the name of the entity that performed the work. 27
(3) Each licensee, preapproved licensee, applicant, grantee, and other 28
program participant shall provide the data requested within 60 days of a request. 29
(d) An entity listed in subsection (a) of this section shall provide the data collected 30
under subsection (c) of this section to the certification agency within 10 days of receipt of 31
the data. 32
SENATE BILL 9 7
(e) (1) Data provided in accordance with this section by each licensee, 1
preapproved licensee, applicant, grantee, or other program participant shall constitute 2
confidential commercial information and confidential financial information and shall be 3
treated as confidential by the entity and the State. 4
(2) Data provided in accordance with this section may be used only for 5
purposes authorized under this section and may be disclosed to the public only in an 6
anonymized or aggregated format. 7
SECTION 3. AND BE IT FURTHER ENACTED, That this Act shall take effect July 8
1, 2022. 9
Approved:
________________________________________________________________________________
Governor.
________________________________________________________________________________
President of the Senate.
________________________________________________________________________________
Speaker of the House of Delegates.