Maryland 2023 Regular Session

Maryland House Bill HB368 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1
2	2
3	3		EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
4	4		[Brackets] indicate matter deleted from existing law.
5		-	Underlining indicates amendments to bill.
6		-	Strike out indicates matter stricken from the bill by amendment or deleted from the law by
7		-	amendment.
8	5		hb0368
9	6
10	7		HOUSE BILL 368
11	8		P4, P2 3lr0854
12	9		CF SB 9
13	10		By: Delegate Cullison
14	11		Introduced and read first time: January 26, 2023
15	12		Assigned to: Appropriations
16		-	Committee Report: Favorable with amendments
17		-	House action: Adopted
18		-	Read second time: February 25, 2023
19	13
20		-	~~CHAPTER ______~~
	14	+	A BILL ENTITLED
21	15
22	16		AN ACT concerning 1
23	17
24	18		State Personnel – Executive Branch Service Contracts – Policy, Certification, 2
25	19		and Notification 3
26	20
27	21		FOR the purpose of altering State policy regarding the preference to use State employees 4
28	22		to perform State functions in State–operated facilities by repealing the requirement 5
29	23		that State employees perform the functions in State–operated facilities; authorizing 6
30	24		the Board of Public Works to approve certain service contracts if the Board receives 7
31	25		a certain certification; requiring the Department of Budget and Management to send 8
32	26		a copy of a certain certification to a certain exclusive representative; and generally 9
33	27		relating to service contracts in the Executive Branch. 10
34	28
35	29		BY repealing and reenacting, without amendments, 11
36	30		Article – State Finance and Procurement 12
37	31		Section 11–101(d), (u), and (y) and 13–218.1 13
38	32		Annotated Code of Maryland 14
39	33		(2021 Replacement Volume and 2022 Supplement) 15
40	34
41		-	BY repealing and reenacting, ~~without~~ amendments, 16
	35	+	BY repealing and reenacting, with amendments, 16
42	36		Article – State Personnel and Pensions 17
43		-	Section 13–401~~(a)~~ and ~~(b)~~ 18
	37	+	Section 13–401, 13–402, and 13–403 18
44	38		Annotated Code of Maryland 19
45	39		(2015 Replacement Volume and 2022 Supplement) 20
46	40
47		-	BY repealing and reenacting, with amendments, 21
48		-	Article – State Personnel and Pensions 22 2 HOUSE BILL 368
	41	+	BY repealing and reenacting, without amendments, 21
	42	+	Article – State Personnel and Pensions 22
	43	+	Section 13–404 23
	44	+	Annotated Code of Maryland 24
	45	+	(2015 Replacement Volume and 2022 Supplement) 25
49	46
50		-
51		-	Section 13–401, 13–402, and 13–403 1
52		-	Annotated Code of Maryland 2
53		-	(2015 Replacement Volume and 2022 Supplement) 3
54		-
55		-	BY repealing and reenacting, without amendments, 4
56		-	Article – State Personnel and Pensions 5
57		-	Section 13–404 6
58		-	Annotated Code of Maryland 7
59		-	(2015 Replacement Volume and 2022 Supplement) 8
60		-
61		-	SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 9
62		-	That the Laws of Maryland read as follows: 10
63		-
64		-	Article – State Finance and Procurement 11
65		-
66		-	11–101. 12
67		-
68		-	(d) “Board” means the Board of Public Works. 13
69		-
70		-	(u) (1) Except as provided in paragraph (3) of this subsection, “services” 14
71		-	means: 15
72		-
73		-	(i) the labor, time, or effort of a contractor; and 16
74		-
75		-	(ii) any product or report necessarily associated with the rendering 17
76		-	of a service. 18
77		-
78		-	(2) “Services” includes services provided by attorneys, accountants, 19
79		-	physicians, consultants, and other professionals who are independent contractors. 20
80		-
81		-	(3) “Services” does not include: 21
82		-
83		-	(i) construction related services; 22
84		-
85		-	(ii) architectural services; 23
86		-
87		-	(iii) engineering services; or 24
88		-
89		-	(iv) energy performance contract services. 25
90		-
91		-	(y) (1) “Unit” means an officer or other entity that is in the Executive Branch 26
92		-	of the State government and is authorized by law to enter into a procurement contract. 27
93		-
94		-	(2) “Unit” does not include: 28
95		-
96		-	(i) a bistate, multistate, bicounty, or multicounty governmental 29
97		-	agency; or 30 HOUSE BILL 368 3
	47	+	SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 26
	48	+	That the Laws of Maryland read as follows: 27 2 HOUSE BILL 368
98	49
99	50
100	51
101		-	(ii) a special tax district, sanitary district, drainage district, soil 1
102		-	conservation district, water supply district, or other political subdivision of the State. 2
	52	+	Article – State Finance and Procurement 1
103	53
104		-	13–~~218.1~~. 3
	54	+	11–101. 2
105	55
106		-	(a) In this section, “service contract” has the meaning stated in § 13–401 of the 4
107		-	State Personnel and Pensions Article. 5
	56	+	(d) “Board” means the Board of Public Works. 3
108	57
109		-	(b) (1) At least 60 days before the issuance of a solicitation for a service 6
110		-	contract that is not exempt under § 13–403(c) or § 13–404(b) of the State Personnel and 7
111		-	Pensions Article, the unit shall provide the exclusive representative of the employees who 8
112		-	may be affected by the service contract with: 9
	58	+	(u) (1) Except as provided in paragraph (3) of this subsection, “services” 4
	59	+	means: 5
113	60
114		-	(i) ~~written notice~~ of~~: 10~~
	61	+	(i) the labor, time, or effort of a contractor; and 6
115	62
116		-	1. work that is being proposed for contracting; and 11
	63	+	(ii) any product or report necessarily associated with the rendering 7
	64	+	of a service. 8
117	65
118		-	2. contracting procedures, requirements, timetables, and 12
119		-	employee rights as provided in Title 13, Subtitle 4 of the State Personnel and Pensions 13
120		-	Article; and 14
	66	+	(2) “Services” includes services provided by attorneys, accountants, 9
	67	+	physicians, consultants, and other professionals who are independent contractors. 10
121	68
122		-	(ii) a reasonable opportunity to meet and discuss alternatives to the 15
123		-	proposed service contract. 16
	69	+	(3) “Services” does not include: 11
124	70
125		-	(2) (i) 1. Except as provided in subsubparagraph 2 of this 17
126		-	subparagraph, this paragraph applies to a solicitation for a service contract for janitorial 18
127		-	services. 19
	71	+	(i) construction related services; 12
128	72
129		-	2. This paragraph does not apply to a service contract for 20
130		-	janitorial services under Title 14, Subtitle 1 of this article. 21
	73	+	(ii) architectural services; 13
131	74
132		-	(ii) In consultation with the Department of General Services, the 22
133		-	Board shall adopt regulations concerning a solicitation for a service contract for janitorial 23
134		-	services to require that a bidder or offeror delineate its costs by category, including: 24
	75	+	(iii) engineering services; or 14
135	76
136		-	1. ~~labor; 25~~
	77	+	(iv) energy performance contract services. 15
137	78
138		-	2. cleaning supplies; and 26
	79	+	(y) (1) “Unit” means an officer or other entity that is in the Executive Branch 16
	80	+	of the State government and is authorized by law to enter into a procurement contract. 17
139	81
140		-	3. projected man–hours to satisfactorily complete the 27
141		-	service. 28
	82	+	(2) “Unit” does not include: 18
142	83
143		-	(c) A ~~violation of this section does not constitute grounds to challenge~~ or ~~appeal 29~~
144		-	~~an award of a procurement~~ or ~~the process through which the procurement was conducted. 30~~
	84	+	(i) a bistate, multistate, bicounty, or multicounty governmental 19
	85	+	agency; or 20
145	86
146		-	Article – State Personnel and Pensions 31 4 HOUSE BILL 368
	87	+	(ii) a special tax district, sanitary district, drainage district, soil 21
	88	+	conservation district, water supply district, or other political subdivision of the State. 22
	89	+
	90	+	13–218.1. 23
	91	+
	92	+	(a) In this section, “service contract” has the meaning stated in § 13–401 of the 24
	93	+	State Personnel and Pensions Article. 25
	94	+
	95	+	(b) (1) At least 60 days before the issuance of a solicitation for a service 26
	96	+	contract that is not exempt under § 13–403(c) or § 13–404(b) of the State Personnel and 27 HOUSE BILL 368 3
	97	+
	98	+
	99	+	Pensions Article, the unit shall provide the exclusive representative of the employees who 1
	100	+	may be affected by the service contract with: 2
	101	+
	102	+	(i) written notice of: 3
	103	+
	104	+	1. work that is being proposed for contracting; and 4
	105	+
	106	+	2. contracting procedures, requirements, timetables, and 5
	107	+	employee rights as provided in Title 13, Subtitle 4 of the State Personnel and Pensions 6
	108	+	Article; and 7
	109	+
	110	+	(ii) a reasonable opportunity to meet and discuss alternatives to the 8
	111	+	proposed service contract. 9
	112	+
	113	+	(2) (i) 1. Except as provided in subsubparagraph 2 of this 10
	114	+	subparagraph, this paragraph applies to a solicitation for a service contract for janitorial 11
	115	+	services. 12
	116	+
	117	+	2. This paragraph does not apply to a service contract for 13
	118	+	janitorial services under Title 14, Subtitle 1 of this article. 14
	119	+
	120	+	(ii) In consultation with the Department of General Services, the 15
	121	+	Board shall adopt regulations concerning a solicitation for a service contract for janitorial 16
	122	+	services to require that a bidder or offeror delineate its costs by category, including: 17
	123	+
	124	+	1. labor; 18
	125	+
	126	+	2. cleaning supplies; and 19
	127	+
	128	+	3. projected man–hours to satisfactorily complete the 20
	129	+	service. 21
	130	+
	131	+	(c) A violation of this section does not constitute grounds to challenge or appeal 22
	132	+	an award of a procurement or the process through which the procurement was conducted. 23
	133	+
	134	+	Article – State Personnel and Pensions 24
	135	+
	136	+	13–401. 25
	137	+
	138	+	(a) In this subtitle the following words have the meanings indicated. 26
	139	+
	140	+	(b) “Service contract” means a procurement contract for services that: 27
	141	+
	142	+	(1) will be provided to a unit in the Executive Branch of State government; 28
	143	+	AND 29
	144	+
	145	+	(2) [will be performed within a State–operated facility; and 30 4 HOUSE BILL 368
147	146
148	147
149	148
150		-	13–401. 1
	149	+	(3)] in the estimation of the procurement officer, will exceed an annual cost 1
	150	+	of $100,000. 2
151	151
152		-	(a) In this subtitle the following words have the meanings indicated. 2
	152	+	(c) “Services” has the meaning stated in § 11–101 of the State Finance and 3
	153	+	Procurement Article. 4
153	154
154		-	(b) “Service contract” means a procurement contract for services that: 3
	155	+	(d) “Unit” has the meaning stated in § 11–101 of the State Finance and 5
	156	+	Procurement Article. 6
155	157
156		-	(1) will be provided to a unit in the Executive Branch of State government; 4
157		-	AND 5
	158	+	13–402. 7
158	159
159		-	(2) [will be performed within a State–operated facility; and 6
	160	+	The policy of this State is to use State employees to perform all State functions [in 8
	161	+	State–operated facilities] in preference to contracting with the private sector to perform 9
	162	+	those functions. 10
160	163
161		-	(3)] in the estimation of the procurement officer, will exceed an annual cost 7
162		-	of $100,000. 8
	164	+	13–403. 11
163	165
164		-	(c) ~~“Services” has~~ the ~~meaning stated in § 11–101~~ of ~~the State Finance and 9~~
165		-	~~Procurement Article~~. 10
	166	+	(a) A service contract may be entered into only as approved by the Board of Public 12
	167	+	Works in accordance with this subtitle. 13
166	168
167		-	(d) “Unit” has the meaning stated in § 11–101 of the State Finance and 11
168		-	Procurement Article. 12
	169	+	(b) (1) Except as provided in subsection (c) of this section, the Board of Public 14
	170	+	Works may approve a service contract for a unit only if the Board receives a certification 15
	171	+	from the Department that: 16
169	172
170		-	13–402. 13
	173	+	[(1)] (I) the service contract is exempt under § 13–404(b) of this subtitle; 17
	174	+	or 18
171	175
172		-	The policy of this State is to use State employees to perform all State functions [in 14
173		-	State–operated facilities] in preference to contracting with the private sector to perform 15
174		-	those functions. 16
	176	+	[(2)] (II) the unit has complied with the requirements of: 19
175	177
176		-	13–~~403. 17~~
	178	+	1. § 13–404(c) of this subtitle; AND 20
177	179
178		-	(a) ~~A service contract may be entered into only as approved by~~ the ~~Board of Public 18~~
179		-	~~Works in accordance with this subtitle~~. 19
	180	+	2. § 13–218.1(B) OF THE STATE FINANCE AND 21
	181	+	PROCUREMENT ARTICLE. 22
180	182
181		-	(b) (1) Except as provided in subsection (c) of this section, the Board of Public 20
182		-	Works may approve a service contract for a unit only if the Board receives a certification 21
183		-	from the Department that: 22
	183	+	(2) IF A SERVICE CONTRACT IS CERTIFIED UNDER § 13–404(C) OF 23
	184	+	THIS SUBTITLE, THE DEPARTMENT SHALL SEND A COPY OF THE CERTIFICATION 24
	185	+	REQUIRED UNDER PARAG RAPH (1) OF THIS SUBSECTION TO THE EXCLUS IVE 25
	186	+	REPRESENTATIVE OF TH E AFFECTED EMPLOYEES . 26
184	187
185		-	[(1)] (I) the service contract is exempt under § 13–404(b) of this subtitle; 23
186		-	or 24
	188	+	(c) If the General Assembly authorizes or requires that certain services be 27
	189	+	performed by an independent contractor, the Board of Public Works may approve a service 28
	190	+	contract for those services without the certification required by subsection (b) of this 29
	191	+	section. 30
187	192
188		-	[(2)] (II) the unit has complied with the requirements of: 25
189		-
190		-	1. § 13–404(c) of this subtitle; AND 26
191		-
192		-	2. § 13–218.1(B) OF THE STATE FINANCE AND 27
193		-	PROCUREMENT ARTICLE. § 13–404(c) of this subtitle. 28
194		-	HOUSE BILL 368 5
195		-
196		-
197		-	(2) IF A SERVICE CONTRACT THAT THE PROCUREMENT OFFICER 1
198		-	ESTIMATES WILL COST MORE THAN $10,000,000 ANNUALLY IS CERTIFIED UNDER § 2
199		-	13–404(C) OF THIS SUBTITLE PARAGRAPH (1) OF THIS SUBSECTION , THE 3
200		-	DEPARTMENT SHALL SEND A COPY OF THE CERTIFICATION REQUIRED UNDER 4
201		-	PARAGRAPH (1) OF THIS SUBSECTION TO THE EXCLUSIVE REP RESENTATIVE OF THE 5
202		-	AFFECTED EMPLOYEES . 6
203		-
204		-	(c) If the General Assembly authorizes or requires that certain services be 7
205		-	performed by an independent contractor, the Board of Public Works may approve a service 8
206		-	contract for those services without the certification required by subsection (b) of this 9
207		-	section. 10
208		-
209		-	13–404. 11
210		-
211		-	(a) The Department may certify a service contract to the Board of Public Works 12
212		-	as provided in this section. 13
213		-
214		-	(b) The Department may certify a service contract as being exempt from the 14
215		-	preference stated in § 13–402 of this subtitle if: 15
216		-
217		-	(1) State employees are not available to perform the services; 16
218		-
219		-	(2) a conflict of interest would result if a State employee were to perform 17
220		-	the services; 18
221		-
222		-	(3) the nature of the services meets the standards set by the Department 19
223		-	for emergency appointments; 20
224		-
225		-	(4) the services are incidental to the purchase or lease of personal property 21
226		-	or real property, such as a service agreement that is part of the purchase or rental of 22
227		-	computers or office equipment; or 23
228		-
229		-	(5) a clear need exists to obtain an unbiased finding or opinion, such as an 24
230		-	expert witness in litigation. 25
231		-
232		-	(c) The Department may certify a service contract that is not exempt under 26
233		-	subsection (b) of this section only if: 27
234		-
235		-	(1) the unit that seeks to enter into the service contract has complied with 28
236		-	§ 13–405 of this subtitle; and 29
237		-
238		-	(2) the Department finds that: 30
239		-
240		-	(i) the potential economic advantage of entering into the service 31
241		-	contract is not outweighed by the preference stated in § 13–402 of this subtitle; 32
242		-	6 HOUSE BILL 368
243		-
244		-
245		-	(ii) the service contract does not adversely affect the affirmative 1
246		-	action efforts of this State; 2
247		-
248		-	(iii) the service contract includes adequate control mechanisms to 3
249		-	ensure that the services will be performed in accordance with the service contract; and 4
250		-
251		-	(iv) the service contract complies with all of the requirements of 5
252		-	Division II of the State Finance and Procurement Article. 6
253		-
254		-	SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect July 7
255		-	1, 2023. 8
	193	+	13–404. 31 HOUSE BILL 368 5
256	194
257	195
258	196
	197	+	(a) The Department may certify a service contract to the Board of Public Works 1
	198	+	as provided in this section. 2
259	199
260		-	Approved:
261		-	________________________________________________________________________________
262		-	Governor.
263		-	________________________________________________________________________________
264		-	Speaker of the House of Delegates.
265		-	________________________________________________________________________________
266		-	President of the Senate.
	200	+	(b) The Department may certify a service contract as being exempt from the 3
	201	+	preference stated in § 13–402 of this subtitle if: 4
	202	+
	203	+	(1) State employees are not available to perform the services; 5
	204	+
	205	+	(2) a conflict of interest would result if a State employee were to perform 6
	206	+	the services; 7
	207	+
	208	+	(3) the nature of the services meets the standards set by the Department 8
	209	+	for emergency appointments; 9
	210	+
	211	+	(4) the services are incidental to the purchase or lease of personal property 10
	212	+	or real property, such as a service agreement that is part of the purchase or rental of 11
	213	+	computers or office equipment; or 12
	214	+
	215	+	(5) a clear need exists to obtain an unbiased finding or opinion, such as an 13
	216	+	expert witness in litigation. 14
	217	+
	218	+	(c) The Department may certify a service contract that is not exempt under 15
	219	+	subsection (b) of this section only if: 16
	220	+
	221	+	(1) the unit that seeks to enter into the service contract has complied with 17
	222	+	§ 13–405 of this subtitle; and 18
	223	+
	224	+	(2) the Department finds that: 19
	225	+
	226	+	(i) the potential economic advantage of entering into the service 20
	227	+	contract is not outweighed by the preference stated in § 13–402 of this subtitle; 21
	228	+
	229	+	(ii) the service contract does not adversely affect the affirmative 22
	230	+	action efforts of this State; 23
	231	+
	232	+	(iii) the service contract includes adequate control mechanisms to 24
	233	+	ensure that the services will be performed in accordance with the service contract; and 25
	234	+
	235	+	(iv) the service contract complies with all of the requirements of 26
	236	+	Division II of the State Finance and Procurement Article. 27
	237	+
	238	+	SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect July 28
	239	+	1, 2023. 29